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Title: Abridgement of the Debates of Congress, from 1789 to 1856, Vol. 3 (of 16)
Author: Various
Language: English
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Transcriber’s Note: A number of obvious printer’s errors (u for
n, inconsistent spelling of Senators’ and Representatives’ names,
punctuation, etc) have been amended. Other than that, the original text
remains unchanged.
ABRIDGMENT
OF THE
DEBATES OF CONGRESS,
FROM 1789 TO 1856.
FROM GALES AND SEATON’S ANNALS OF CONGRESS; FROM THEIR
REGISTER OF DEBATES; AND FROM THE OFFICIAL
REPORTED DEBATES, BY JOHN C. RIVES.
BY
THE AUTHOR OF THE THIRTY YEARS’ VIEW.
VOL. III.
NEW YORK
D. APPLETON & COMPANY, 443 & 445 BROADWAY.
1861
Entered according to Act of Congress, in the year 1856, by
D. APPLETON AND COMPANY,
in the Clerk’s Office of the District Court for the Southern
District of New York.
EIGHTH CONGRESS.--FIRST SESSION.
BEGUN AT THE CITY OF WASHINGTON, OCTOBER 17, 1803.
PRESIDENT OF THE UNITED STATES,--THOMAS JEFFERSON.
PROCEEDINGS IN THE SENATE.
LIST OF MEMBERS OF THE SENATE.
_New Hampshire._--Simeon Olcott, William Plumer.
_Vermont._--S. R. Bradley, Israel Smith.
_Massachusetts._--Jonathan Mason, Timothy Pickering.
_Rhode Island._--Christopher Ellery, Samuel I. Potter.
_Connecticut._--James Hillhouse, Uriah Tracy.
_New York._--De Witt Clinton, Theodorus Bailey.
_New Jersey._--Jonathan Dayton, John Condit.
_Pennsylvania._--George Logan, Samuel Maclay.
_Delaware._--William H. Wells, Samuel White.
_Maryland._--Robert Wright, Samuel Smith.
_Virginia._--Wilson C. Nicholas, John Taylor.
_North Carolina._--Jesse Franklin, David Stone.
_South Carolina._--Pierce Butler, Thomas Sumter.
_Georgia._--A. Baldwin, James Jackson.
_Tennessee._--William Cocke, Joseph Anderson.
_Kentucky._--John Breckenridge, John Browne.
_Ohio._--Thomas Worthington, John Smith.
MONDAY, October 17, 1803.
The first session of the eighth Congress, conformably to the Constitution
of the United States, commenced at the city of Washington, agreeably to
the Proclamation of the President of the United States for that purpose;
and the Senate assembled on this day.
PRESENT:
SIMEON OLCOTT and WILLIAM PLUMER, from New Hampshire;
TIMOTHY PICKERING, from Massachusetts;
JAMES HILLHOUSE and URIAH TRACY, from Connecticut;
CHRISTOPHER ELLERY and SAMUEL I. POTTER, from Rhode Island;
STEPHEN R. BRADLEY and ISRAEL SMITH, from Vermont;
DE WITT CLINTON and THEODORUS BAILEY, from New York;
JONATHAN DAYTON and JOHN CONDIT, from New Jersey;
GEORGE LOGAN and SAMUEL MACLAY, from Pennsylvania;
WILLIAM HILL WELLS and SAMUEL WHITE, from Delaware;
ROBERT WRIGHT and SAMUEL SMITH, from Maryland;
JOHN TAYLOR and WILSON CAREY NICHOLAS, from Virginia;
JOHN BROWN and JOHN BRECKENRIDGE, from Kentucky;
JESSE FRANKLIN and DAVID STONE, from North Carolina;
JOSEPH ANDERSON and WILLIAM COCKE, from Tennessee;
ABRAHAM BALDWIN, from Georgia; and
THOMAS WORTHINGTON, from Ohio.
The Vice President being absent, the Senate proceeded to the election
of a President, _pro tem._, as the constitution provides, and the
ballots being collected and counted, the whole number was found to be
twenty-nine, of which fifteen make a majority. Mr. BROWN had 24, Mr.
BALDWIN 2, Mr. DAYTON 2, and Mr. PICKERING 1.
Consequently, the Honorable JOHN BROWN was elected President of the
Senate, _pro tempore_.
The credentials of the following Senators were severally read, to wit:
Of JOSEPH ANDERSON, appointed a Senator by the Legislature of the State
of Tennessee; of THEODORUS BAILEY, appointed a Senator by the Legislature
of the State of New York; of JAMES HILLHOUSE, appointed a Senator by the
Legislature of the State of Connecticut; of SAMUEL MACLAY, appointed a
Senator by the Legislature of the State of Pennsylvania; of SAMUEL I.
POTTER, appointed a Senator by the Legislature of the State of Rhode
Island; of ISRAEL SMITH, appointed a Senator by the Legislature of the
State of Vermont; of SAMUEL WHITE, appointed a Senator by the Legislature
of the State of Delaware; for the term of six years from and after the
third day of March last, respectively: also, of THOMAS WORTHINGTON,
appointed a Senator by the Legislature of the State of Ohio; of JOHN
CONDIT, appointed a Senator by the Executive of the State of New Jersey;
of JOHN TAYLOR, appointed a Senator by the Executive of the State of
Virginia, in place of S. T. Mason, deceased; of TIMOTHY PICKERING,
appointed a Senator by the Legislature of the State of Massachusetts, in
the place of Dwight Foster, resigned; and the oath required by law was,
by the PRESIDENT, administered to them respectively.
The oath was also administered to SAMUEL SMITH, appointed a Senator by
the Legislature of the State of Maryland, for the term of six years from
and after the third day of March last.
_Ordered_, That the Secretary wait on the President of the United States
and acquaint him that a quorum of the Senate is assembled, and that, in
the absence of the VICE PRESIDENT, they have elected the Hon. JOHN BROWN
President of the Senate, _pro tempore_.
The Secretary was directed to give a similar notice to the House of
Representatives.
_Resolved_, That JAMES MATHERS, Sergeant-at-Arms and Doorkeeper to
the Senate, be, and he is hereby, authorized to employ one additional
assistant and two horses, for the purpose of performing such services as
are usually required by the Doorkeeper to the Senate; and that the sum of
twenty-eight dollars be allowed him weekly for that purpose during the
session, and for twenty days after.
_Resolved_, That each Senator be supplied during the present session with
three such newspapers, printed in any of the States, as he may choose,
provided that the same be furnished at the usual rate for the annual
charge of such papers.
A message from the House of Representatives informed the Senate that a
quorum of the House had assembled, and had elected the Hon. NATHANIEL
MACON their Speaker, and is ready to proceed to business.
_Ordered_, That Messrs. CLINTON and BRECKENRIDGE be a committee on
the part of the Senate, together with such committee as the House of
Representatives may appoint on their part, to wait on the President of
the United States, and notify him that a quorum of the two Houses is
assembled, and ready to receive any communications that he may be pleased
to make to them.
A message from the House of Representatives informed the Senate, that
the House agree to the resolution of the Senate for the appointment of a
joint committee to wait on the President of the United States, and have
appointed a committee on their part.
On motion, _Resolved_, That two Chaplains, of different denominations,
be appointed to Congress for the present session, one by each House, who
shall interchange weekly.
_Ordered_, That the Secretary desire the concurrence of the House of
Representatives in this resolution.
The Senate proceeded to the choice of a Chaplain on their part, and
the ballots having been collected and counted, the whole number was
twenty-eight; of which fifteen make a majority. Mr. GANTT had 15 votes,
and Mr. M’CORMICK 13.
Consequently, the Rev. Dr. GANTT was elected.
Mr. CLINTON reported, from the joint committee appointed for the purpose,
that they had waited on the PRESIDENT OF THE UNITED STATES, and that
he had acquainted them that he would make a communication to the two
Houses, by message, immediately.
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In calling you together, fellow-citizens, at an earlier
day than was contemplated by the act of the last session
of Congress, I have not been insensible to the personal
inconveniences necessarily resulting from an unexpected change
in your arrangements. But matters of great public concernment
have rendered this call necessary, and the interest you feel in
these will supersede, in your minds, all private considerations.
Congress witnessed, at their late session, the extraordinary
agitation produced in the public mind by the suspension of our
right of deposit at the port of New Orleans, no assignment of
another place having been made according to treaty. They were
sensible that the continuance of that privation would be more
injurious to our nation than any consequences which could flow
from any mode of redress; but, reposing just confidence in the
good faith of the Government whose officer had committed the
wrong, friendly and reasonable representations were resorted
to, and the right of deposit was restored.
Previous, however, to this period, we had not been unaware of
the danger to which our peace would be perpetually exposed
whilst so important a key to the commerce of the western
country remained under a foreign power. Difficulties too
were presenting themselves as to the navigation of other
streams, which, arising within our territories, pass through
those adjacent. Propositions had therefore been authorized
for obtaining, on fair conditions, the sovereignty of New
Orleans, and of other possessions in that quarter, interesting
to our quiet, to such extent as was deemed practicable; and
the provisional appropriation of two millions of dollars,
to be applied and accounted for by the President of the
United States, intended as part of the price, was considered
as conveying the sanction of Congress to the acquisition
proposed.[1] The enlightened Government of France saw, with
just discernment, the importance to both nations of such
liberal arrangements as might best and permanently promote the
peace, interests, and friendship of both; and the property and
sovereignty of all Louisiana, which had been restored to them,
has, on certain conditions, been transferred to the United
States, by instruments bearing date the 30th of April last.
When these shall have received the constitutional sanction
of the Senate, they will, without delay, be communicated to
the Representatives for the exercise of their functions, as
to those conditions which are within the powers vested by the
constitution in Congress. Whilst the property and sovereignty
of the Mississippi and its waters secure an independent outlet
for the produce of the Western States, and an uncontrolled
navigation through their whole course, free from collision
with other Powers, and the dangers to our peace from that
source, the fertility of the country, its climate and extent,
promise, in due season, important aids to our Treasury, an
ample provision for our posterity, and a wide spread for the
blessings of freedom and equal laws.
With the wisdom of Congress it will rest to take those ulterior
measures which may be necessary for the immediate occupation
and temporary government of the country; for its incorporation
into our Union; for rendering the change of government a
blessing to our newly adopted brethren; for securing to them
the rights of conscience and property; for confirming to
the Indian inhabitants their occupancy and self-government,
establishing friendly and commercial relations with them,
and for ascertaining the geography of the country acquired.
Such materials for your information relative to its affairs
in general, as the short space of time has permitted me to
collect, will be laid before you when the subject shall be in a
state for your consideration.
The small vessels authorized by Congress, with a view to the
Mediterranean service, have been sent into that sea, and will
be able more effectually to confine the Tripoline cruisers
within their harbors, and supersede the necessity of convoy to
our commerce in that quarter. They will sensibly lessen the
expenses of that service the ensuing year.
A further knowledge of the ground in the north-eastern and
north-western angles of the United States has evinced that
the boundaries established by the treaty of Paris, between
the British territories and ours in those parts, were too
imperfectly described to be susceptible of execution. It has
therefore been thought worthy of attention, for preserving
and cherishing the harmony and useful intercourse subsisting
between the two nations, to remove, by timely arrangements,
what unfavorable incidents might otherwise render a ground
of future misunderstanding. A convention has therefore been
entered into, which provides for a practicable demarcation of
those limits, to the satisfaction of both parties.
An account of the receipts and expenditures of the year ending
30th September last, with the estimates for the service of
the ensuing year, will be laid before you by the Secretary
of the Treasury, so soon as the receipts of the last quarter
shall be returned from the more distant States. It is already
ascertained that the amount paid into the Treasury for that
year has been between eleven and twelve millions of dollars;
and that the revenue accrued, during the same term, exceeds
the sum counted on as sufficient for our current expenses, and
to extinguish the public debt within the period heretofore
proposed.
We have seen with sincere concern the flames of war lighted
up again in Europe, and nations, with which we have the most
friendly and useful relations, engaged in mutual destruction.
While we regret the miseries in which we see others involved,
let us bow with gratitude to that kind Providence, which,
inspiring with wisdom and moderation our late Legislative
Councils, while placed under the urgency of the greatest
wrongs, guarded us from hastily entering into the sanguinary
contest, and left us only to look on and to pity its ravages.
These will be the heaviest on those immediately engaged. Yet
the nations pursuing peace will not be exempt from all evil.
In the course of this conflict let it be our endeavor, as it
is our interest and desire, to cultivate the friendship of the
belligerent nations by every act of justice, and of innocent
kindness; to receive their armed vessels with hospitality from
the distresses of the sea, but to administer the means of
annoyance to none; to establish in our harbors such a police
as may maintain law and order; to restrain our citizens from
embarking individually in a war in which their country takes no
part; to punish severely those persons, citizen or alien, who
shall usurp the cover of our flag for vessels not entitled to
it, infecting thereby with suspicion those of real Americans,
and committing us into controversies for the redress of wrongs
not our own; to exact from every nation the observance, towards
our vessels and citizens, of those principles and practices
which all civilized people acknowledge; to merit the character
of a just nation, and maintain that of an independent one,
preferring every consequence to insult and habitual wrong.
Separated by a wide ocean from the nations of Europe, and from
the political interests which entangle them together, with
productions and wants which render our commerce and friendship
useful to them, and theirs to us, it cannot be the interest of
any to assail us, nor ours to disturb them. We should be most
unwise, indeed, were we to cast away the singular blessings of
the position in which nature has placed us, the opportunity she
has endowed us with, of pursuing, at a distance from foreign
contentions, the paths of industry, peace, and happiness; of
cultivating general friendship, and of bringing collisions of
interest to the umpire of reason rather than of force. How
desirable, then, must it be, in a Government like ours, to see
its citizens adopt, individually, the views, the interests,
and the conduct, which their country should pursue, divesting
themselves of those passions and partialities which tend to
lessen useful friendships, and to embarrass and embroil us, in
the calamitous scenes of Europe! Confident, fellow-citizens,
that you will duly estimate the importance of neutral
dispositions towards the observance of neutral conduct, that
you will be sensible how much it is our duty to look on the
bloody arena spread before us, with commiseration, indeed, but
with no other wish than to see it closed, I am persuaded you
will cordially cherish these dispositions in all discussions
among yourselves, and in all communications with your
constituents; and I anticipate, with satisfaction, the measures
of wisdom which the great interests now committed to you will
give _you_ an opportunity of providing, and _myself_, that of
approving and of carrying into execution with the fidelity I
owe to my country.
TH. JEFFERSON.
OCT. 17, 1803.
The Message was read, and five hundred copies thereof ordered to be
printed for the use of the Senate.
TUESDAY, October 18.
PIERCE BUTLER, appointed a Senator by the Legislature of the State of
South Carolina, for the unexpired time for which the late John Ewing
Colhoun was elected to serve, produced his credentials, which were read,
and the oath required by law was administered to him by the President.
JAMES JACKSON, from the State of Georgia, attended.
The credentials of SAMUEL SMITH, a Senator from the State of Maryland,
were read.
FRIDAY, October 21.
JOHN QUINCY ADAMS, appointed a Senator by the Legislature of the State
of Massachusetts, for six years, commencing the 4th day of March last,
produced his credentials, which were read; and the oath required by law
was administered to him by the President.
Mr. CLINTON, after a few prefatory observations on the necessity of
designating the persons, severally, whom the people should wish to
hold the offices of President and Vice-President of the United States,
and stating that the State which he represented, as well as others in
the Union, had, through the medium of their Legislatures, strongly
recommended the adoption of the principle, laid on the table the
following motion, which he read; and it was made the order of the day for
the next day, and printed.
[The amendment proposed by Mr. Clinton grew out of the attempt
in the House of Representatives to elect Mr. Burr President,
and to prevent such attempt in future, in the event of an
equality of votes between the two highest on the list, it
required the electors to discriminate between the presidential
and vice-presidential office, and name the persons voted for
for each.]
Mr. BRECKENRIDGE gave notice, that he should, to-morrow, ask leave to
bring in a bill to enable the President of the United States to take
possession of the territories ceded by France to the United States, by
the treaty concluded at Paris on the 30th of April last, and for other
purposes.
SATURDAY, October 22.
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In my communication to you of the 17th instant, I informed you
that conventions had been entered into with the Government
of France for the cession of Louisiana to the United States.
These, with the advice and consent of the Senate, having now
been ratified, and my ratification exchanged for that of the
First Consul of France in due form, they are communicated to
you for consideration in your Legislative capacity. You will
observe that some important conditions cannot be carried into
execution, but with the aid of the Legislature; and that time
presses a decision on them without delay.
The ulterior provisions, also, suggested in the same
communication, for the occupation and government of the
country, will call for early attention. Such information
relative to its government as time and distance have permitted
me to obtain, will be ready to be laid before you in a few
days. But, as permanent arrangements for this object may
require time and deliberation, it is for your consideration
whether you will not forthwith make such temporary provisions
for the preservation, in the meanwhile, of order and
tranquillity in the country, as the case may require.
TH. JEFFERSON.
OCT. 21, 1803.
The Message was read, and, together with the papers therein referred to,
ordered to lie for consideration.
Agreeably to notice given yesterday, Mr. BRECKENRIDGE had leave to bring
in a bill to enable the President of the United States to take possession
of the territories ceded by France to the United States, by the treaty
concluded at Paris on the 30th of April last, and for other purposes;
which bill was read, and ordered to the second reading. The bill is in
the following words:
_Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That the
President of the United States be, and he is hereby, authorized
to take possession of and occupy the territories ceded by
France to the United States by the treaty concluded at Paris,
on the 30th day of April last, between the two nations; and
that he may for that purpose, and in order to maintain in the
said territories the authority of the United States, employ
any part of the Army and Navy of the United States, and of the
force authorized by an act passed the 3d day of March last,
entitled “An act directing a detachment from the militia of
the United States, and for erecting certain arsenals,” which
he may deem necessary: And so much of the sum appropriated by
the said act as may be necessary is hereby appropriated for the
purpose of carrying this act into effect; to be applied under
the direction of the President of the United States.
SEC 2.. _And be it further enacted_, That until Congress shall
have made provision for the temporary government of the said
territories, all the military, civil, and judicial powers
exercised by the officers of the existing government of the
same, shall be vested in such person or persons, and shall be
exercised by and in such manner, as the President of the United
States shall direct.
_Amendment to the Constitution._
The order of the day being called for on Mr. CLINTON’s motion of
yesterday,
Mr. CLINTON said that, as the resolution was but now printed, and laid
before the Senate, it might be proper to refer it to Monday for further
consideration, but if it was requisite, by the rules of the Senate, that
the resolution must have three separate readings, and on three different
days, he should call for a second reading on Saturday, that it might be
in readiness for a third reading on Monday, and be ultimately acted upon
that day, as the Legislatures of Tennessee and Vermont were in session,
and probably must be at the trouble of an extra session to act upon the
amendment, unless it could be sent to them before they separated.
Mr. BROWN, of Kentucky, the President _pro tem._ of the Senate, said
the written rule of the Senate determined that bills should have three
readings, and on different days, without unanimous consent to the
contrary; but the resolutions were not included; and that he should be
glad of the opinion of the Senate upon the subject.
Mr. TRACY of Connecticut said, that there was no written rule which would
reach the case, but the Vice President, upon the ground that they came
within the reason of the rule, had determined that all resolutions which
required a joint vote of both Houses to give them efficacy, should take
the same course as bills, and have three readings, and on different days,
before a final vote; and as this resolution went to the alteration of
the supreme law of the land, as the constitution was declared to be, he
thought it highly requisite to give the deliberations all the solemnity
which was required in passing bills.
Mr. BRADLEY, of Vermont, then offered two amendments to the resolution;
one went to the form only, and the other makes a majority of votes of the
electors requisite for the choice of Vice President, and in case such
majority is not obtained, places the choice of Vice President in the
Senate.
Mr. BUTLER, of South Carolina, proposed an amendment by adding a new
clause, in substance: “That at the next election of President, no person
should be eligible who had served more than eight years, and, in all
future elections, no person should be eligible more than four years in
any period of eight years.”
Mr. DAYTON, of New Jersey, moved to refer the resolution, with all the
amendments, to a select committee; he said that it was a subject far too
important to be carried in this way. There has been no time to consider
it. Something more was due in this instance, than, as it were, offering
it one moment, and deciding upon it the next.
Mr. HILLHOUSE, of Connecticut, supported the motion for referring the
question to a select committee. He was opposed to entering now upon the
business. Why should this subject be hurried? Why not have taken it up
last session? We might in that case have had time to consider it. He had
not often known a resolution, of the nature of that before the House,
disposed of otherwise, in the first instance, than being referred to a
committee. He never knew it refused. In a great and free empire, like the
United States, this question is of the highest importance--no less than
the choice of the First Magistrate. It is laid upon the table to-day,
and we are to determine upon it to-morrow. He hoped not, and as he never
knew it refused before, he hoped that it would not be adopted now. He
wished it to be referred to a select committee; that it should there be
examined, line by line, letter by letter. In the present mode of doing
business, it is impossible to act with accuracy. He again trusted and
hoped that it would be referred to a select committee.
Mr. JACKSON, of Georgia, wished the business to be immediately proceeded
upon. He was an admirer of Mr. Jefferson; he was happy, and he trusted
all were happy, while he was President. But, continued Mr. J., we know
not who may follow him; we may have a Buonaparte, or one who will
be equally obnoxious to the people. He hoped the motions would be
incorporated and immediately come before the House.
Mr. WRIGHT, of Maryland, spoke for some time against the resolution going
to a committee. He was against the amendment proposed by Mr. BUTLER.
A committee might report when they pleased. He therefore thought it
necessary to proceed with the question immediately.
Mr. SMITH, of Maryland, wished to have some principles fixed. If the
motion and amendments were to go to a committee, he would not tack them
together, for by this mode they might both be lost. It has been said that
the subject might have been entered into last session. There was then a
multiplicity of business of importance before the House, yet this subject
might have been entered into. As it stands, this is the proper place to
make objections. The mover of the resolution does not say that it shall
be determined on Monday; he means that it shall then be before the whole
House.
After some desultory observations, in which one member observed that
he thought it disorderly, the question on Mr. BUTLER’s amendment was
put--ayes 16, nays 15.
A committee was then chosen for the purpose, namely:
Mr. BUTLER, Mr. BRADLEY, Mr. CLINTON, Mr. NICHOLAS, and Mr. SMITH.
MONDAY, October 24.
_Louisiana Cession._
The bill to enable the President of the United States to take possession
of the territories ceded by France to the United States, by the treaty
concluded at Paris on the 30th of April last, and for other purposes, was
read the second time and referred to Messrs. BRECKENRIDGE, DAYTON, and
BALDWIN, to consider and report thereon.
_Amendment to the Constitution._
Mr. BUTLER, from the committee, to whom was referred, on the 22d inst.,
the motion for an amendment to the Constitution of the United States,
made report, which was read.
Mr. DAYTON moved to strike out all which respected the appointment of a
Vice President.
He said the great inducements of the framers of the constitution to admit
the office of Vice President was, that, by the mode of choice, the best
and most respectable man should be designated; and that the electors of
each State should vote for one person at least, living in a different
State from themselves; and if the substance of the amendment was adopted,
he thought the office had better be abolished. Jealousies were natural
between President and Vice President; no heir apparent ever loved the
person on the throne. With this resolution for an amendment to the
constitution we were left with all the inconveniencies, without a single
advantage from the office of Vice President.
Mr. CLINTON.--The obvious intention of the amendment proposed by
the gentleman from New Jersey, is to put off or get rid of the main
question. It would more comport with the candor of the gentleman to
meet the question fairly. Can the gentleman suppose that the electors
will not vote for a man of respectability for Vice President? True, the
qualifications are distinct, and ought not to be confounded; this will
stave off the question till the Legislatures of the States of Tennessee
and Vermont are out of session, and the object must be very obvious.
Mr. DAYTON.--The custom of the gentleman from New York has been of late
to arraign motives instead of meeting arguments; on Saturday he accused
me of wishing to procrastinate, and now the same is repeated.
The reasons of erecting the office are frustrated by the amendment to the
constitution now proposed; it will be preferable, therefore, to abolish
the office.
Mr. CLINTON.--The charge of the gentleman from New Jersey is totally
unfounded that I arraign motives, and do not meet arguments. On Saturday
the gentleman accused me of precipitation; I am not in the habit of
arraigning motives, as this Senate can witness, and the charge is totally
untrue.
Mr. NICHOLAS.--To secure the United States from the dangers which
existed during the last choice of President, the present resolution was
introduced. It was impossible to act upon, or pass the amendment offered
by the member from New Jersey, with a full view of all its bearings at
this time. It ought not to stand in the way of the resolution reported by
the committee, for two-thirds or three-quarters of the State Legislatures
would be in session in two or three months; the Senate had, therefore,
better not admit the amendment, even if convinced that it was correct,
because it might jeopardize the main amendment of discriminating.
Mr. BUTLER moved a postponement until Wednesday, because the amendment
was important, and he had not had sufficient time to make up his mind.
Mr. WORTHINGTON said the same.
This motion was seconded.
The question for postponement was taken, and lost--ayes 15, noes 16.
The amendment of Mr. DAYTON was now before the Senate.
A motion for adjournment was now made and carried--ayes 16, noes 15.
TUESDAY, October 25.
JOHN SMITH, appointed a Senator by the Legislature of the State of Ohio,
attended and produced his credentials, which were read, and the oath
required by law was administered to him by the President.
Mr. BRECKENRIDGE, from the committee to whom was referred, on the 24th
instant, the bill to enable the President of the United States to take
possession of the territories ceded by France to the United States, by
the treaty concluded at Paris on the 30th of April last, and for other
purposes, reported it without amendment.
_Ordered_, That this bill pass to a third reading.
WEDNESDAY, October 26.
_Louisiana Treaty._
The bill to enable the President of the United States to take possession
of the territories ceded by France to the United States, by the treaty
concluded at Paris on the 30th of April last, and for other purposes, was
read the third time. And, on the question, Shall this bill pass? it was
determined in the affirmative--yeas 26, nays 6, as follows:
YEAS.--Messrs. Anderson, Bailey, Baldwin, Bradley,
Breckenridge, Brown, Butler, Cocke, Condit, Dayton, Ellery,
Franklin, Jackson, Logan, Maclay, Nicholas, Potter, I. Smith,
J. Smith, S. Smith, Stone, Taylor, Wells, White, Worthington,
and Wright.
NAYS.--Messrs. Adams, Hillhouse, Olcott, Pickering, Plumer, and
Tracy.[2]
SATURDAY, October 29.
Mr. BRECKENRIDGE, from the committee of conference on the amendments of
the House of Representatives to the bill, entitled “An act to enable
the President of the United States to take possession of the territories
ceded by France to the United States, by the treaty concluded at Paris
on the 30th of April last, and for the temporary government thereof,”
reported, that the Senate recede from their disagreement to the
amendments, and agree thereto, with amendments; and a division of the
report was called for.
And, on the question to adopt the report, so far as that the Senate
recede from their disagreement to the amendments of the House of
Representatives, it passed in the affirmative.
And, on the question to adopt the remaining division of the report, it
passed in the negative.
So it was _Resolved_, That the Senate recede from their disagreement to
the amendments of the House of Representatives to the said bill, and
agree thereto.[3]
MONDAY, October 31.
On motion, it was,
_Resolved, unanimously_, That the members of the Senate, from a sincere
desire of showing every mark of respect due to the memory of the Hon.
STEVENS THOMPSON MASON, deceased, late a member thereof, will go into
mourning for him one month, by the usual mode of wearing a crape around
the left arm.[4]
WEDNESDAY, November 2.
_Louisiana Treaty._
The Senate resumed the second reading of the bill, entitled “An act
authorizing the creation of a stock to the amount of eleven millions two
hundred and fifty thousand dollars, for the purpose of carrying into
effect the convention of the 30th of April, 1803, between the United
States of America and the French Republic, and making provision for the
payment of the same;” and having amended the bill--
On the question, Shall the bill pass?
Mr. WHITE rose and made the following remarks:
Mr. President, by the provisions of the bill before us, and which are
thus far in conformity with the words of the treaty, we have until
three months after the exchange of ratifications and the delivery of
possession to pay this money in. Where, then, is the necessity for such
haste on this subject? It seems to me to be anticipating our business
unnecessarily, and perhaps unwisely; it is showing on our part a degree
of anxiety that may be taken advantage of and operate to our injury,
and that may serve to retard the accomplishment of the very object
that gentlemen seem to have so much at heart. It is not at present
altogether certain that we shall ever have occasion to use this stock,
and it will be time enough to provide it when the occasion arises, when
we see ourselves in the undisturbed possession of this mighty boon, or
wherefore are we allowed these three months’ credit after the delivery
of possession? The ratifications have been already exchanged; the French
officer who is to make the cession is said to be at New Orleans, and
previous to the adjournment of Congress we shall know with certainty
whether the First Consul will or can carry this treaty faithfully into
operation. We have already passed a bill authorizing the President to
take possession, for which I voted, and it will be time enough to create
this stock and to make the other necessary arrangements when we find
ourselves in possession of the territory, or when we ascertain with
certainty that it will be given to us.
But, Mr. President, it is now a well-known fact, that Spain considers
herself injured by this treaty, and if it should be in her power to
prevent it, will not agree to the cession of New Orleans and Louisiana
to the United States. She considers herself absolved from her contract
with France, in consequence of the latter having neglected to comply with
certain stipulations in the Treaty of St. Ildefonso, to be performed on
her part, and of having violated her engagement never to transfer this
country into other hands. Gentlemen may say this money is to be paid
upon the responsibility of the President of the United States, and not
until after the delivery of possession to us of the territory; but why
cast from ourselves all the responsibility upon this subject, and impose
the whole weight upon the President, which may hereafter prove dangerous
and embarrassing to him? Why make the President the sole and absolute
judge of what shall be a faithful delivery of possession under the
treaty? What he may think a delivery of possession sufficient to justify
the payment of this money, we might not; and I have no hesitation in
saying that if, in acquiring this territory under the treaty, we have to
fire a single musket, to charge a bayonet, or to lose a drop of blood,
it will not be such a cession on the part of France as should justify to
the people of this country the payment of any, and much less so enormous
a sum of money. What would the case be, sir? It would be buying of France
authority to make war upon Spain; it would be giving the First Consul
fifteen millions of dollars to stand aloof until we can settle our
differences with His Catholic Majesty. Would honorable gentlemen submit
to the degradation of purchasing even his neutrality at so inconvenient
a price? We are told that there is in the hands of the French Prefect
at New Orleans a royal order of His Catholic Majesty, founded upon the
Treaty of St. Ildefonso, for the delivery of possession of this territory
to France; but which has never been done--the precedent conditions not
having been performed on the part of France. This royal order, it is
probable, will be handed over to our Commissioner, or to whoever may be
sent down to receive possession. We may then be told that we have the
right of France, as she acquired it from Spain, which is all she is bound
by her treaty to transfer to us; we may be shown the Spaniards, who yet
claim to be the rightful owners of the country, and be told that we have
the permission of the First Consul to subdue or drive them out, and,
according to the words of the treaty, to take possession. Of our capacity
to do so I have no doubt; but this we could have done, sir, six months
ago, and with one-sixth of fifteen millions of dollars, when they had
wantonly violated the sacred obligations of a treaty, had insulted our
Government, and prostrated all the commerce of our Western country. Then
we had, indeed, a just cause for chastising them; the laws of nations
and of honor authorized it, and all the world would have applauded our
conduct. And it is well known that if France had been so disposed she
could not have brought a single man or ship to their relief; before the
news could have reached Europe, she was blockaded in her own ports by
the British fleet. But that time was permitted to go by unimproved, and
instead of regretting the past, let us provide for the future.
Admitting then, Mr. President, that His Catholic Majesty is hostile to
the cession of this territory to the United States, and no honorable
gentleman will deny it, what reasons have we to suppose that the
French Prefect, provided the Spaniards should interfere, can give to
us peaceable possession of the country? He is acknowledged there in no
public character, is clothed with no authority, nor has he a single
soldier to enforce his orders. I speak now, sir, from mere probabilities.
I wish not to be understood as predicting that the French will not cede
to us the actual and quiet possession of the territory. I hope to God
they may, for possession of it we must have--I mean of New Orleans, and
of such other positions on the Mississippi as may be necessary to secure
to us for ever the complete and uninterrupted navigation of that river.
This I have ever been in favor of; I think it essential to the peace of
the United States, and to the prosperity of our Western country. But
as to Louisiana, this new, immense, unbounded world, if it should ever
be incorporated into this Union, which I have no idea can be done but
by altering the constitution, I believe it will be the greatest curse
that could at present befall us; it may be productive of innumerable
evils, and especially of one that I fear even to look upon. Gentlemen on
all sides, with very few exceptions, agree that the settlement of this
country will be highly injurious and dangerous to the United States; but
as to what has been suggested of removing the Creeks and other nations of
Indians from the eastern to the western banks of the Mississippi, and of
making the fertile regions of Louisiana a howling wilderness, never to be
trodden by the foot of civilized man, it is impracticable. The gentleman
from Tennessee (Mr. COCKE) has shown his usual candor on this subject,
and I believe with him, to use his strong language, that you had as
well pretend to inhibit the fish from swimming in the sea as to prevent
the population of that country after its sovereignty shall become ours.
To every man acquainted with the adventurous, roving, and enterprising
temper of our people, and with the manner in which our Western country
has been settled, such an idea must be chimerical. The inducements will
be so strong that it will be impossible to restrain our citizens from
crossing the river. Louisiana must and will become settled, if we hold
it, and with the very population that would otherwise occupy part of
our present territory. Thus our citizens will be removed to the immense
distance of two or three thousand miles from the capital of the Union,
where they will scarcely ever feel the rays of the General Government;
their affections will become alienated; they will gradually begin to view
us as strangers; they will form other commercial connections, and our
interests will become distinct.
These, with other causes that human wisdom may not now foresee, will in
time effect a separation, and I fear our bounds will be fixed nearer to
our houses than the waters of the Mississippi. We have already territory
enough, and when I contemplate the evils that may arise to these States,
from this intended incorporation of Louisiana into the Union, I would
rather see it given to France, to Spain, or to any other nation of the
earth, upon the mere condition that no citizen of the United States
should ever settle within its limits, than to see the territory sold
for a hundred millions of dollars, and we retain the sovereignty. But
however dangerous the possession of Louisiana might prove to us, I do
not presume to say that the retention of it would not have been very
convenient to France, and we know that at the time of the mission of
Mr. Monroe, our Administration had never thought of the purchase of
Louisiana, and that nothing short of the fullest conviction on the part
of the First Consul that he was on the very eve of a war with England;
that this being the most defenceless point of his possessions, if such
they could be called, was the one at which the British would first
strike, and that it must inevitably fall into their hands, could ever
have induced his pride and ambition to make the sale. He judged wisely,
that he had better sell it for as much as he could get than lose it
entirely. And I do say that under existing circumstances, even supposing
that this extent of territory was a desirable acquisition, fifteen
millions of dollars was a most enormous sum to give. Our Commissioners
were negotiating in Paris--they must have known the relative situation
of France and England--they must have known at the moment that a war
was unavoidable between the two countries, and they knew the pecuniary
necessities of France and the naval power of Great Britain. These
imperious circumstances should have been turned to our advantage, and if
we were to purchase, should have lessened the consideration. Viewing, Mr.
President, this subject in any point of light--either as it regards the
territory purchased, the high consideration to be given, the contract
itself, or any of the circumstances attending it, I see no necessity
for precipitating the passage of this bill; and if this motion for
postponement should fail, and the question on the final passage of the
bill be taken now, I shall certainly vote against it.
The further consideration of the bill was postponed until to-morrow.
THURSDAY, November 3.
_Louisiana Treaty._
The bill, entitled “An act authorizing the creation of a stock to the
amount of eleven millions two hundred and fifty thousand dollars, for
the purpose of carrying into effect the Convention of the 30th of April,
1803, between the United States of America and the French Republic,
and making provision for the payment of the same,” was read the third
time; and, having been amended, on the question, Shall this bill pass as
amended?
Mr. WELLS said: Mr. President, having always held to the opinion that,
when a treaty was duly made under the constituted authorities of the
United States, Congress was bound to pass the laws necessary to carry it
into effect; and as the vote which I am about to give may not at first
seem to conform itself to this opinion, I feel an obligation imposed upon
me to state, in as concise a manner as I can, the reasons why I withhold
my assent from the passage of this bill.
There are two acts necessary to be performed to carry the present
treaty into effect--one by the French Government, the other by our own.
They are to deliver us a fair and effectual possession of the ceded
territory; and then, and not till then, are we to pay the purchase
money. We have already authorized the President to receive possession.
This co-operation on our part was requisite to enable the French to
comply with the stipulation they had made; they could not deliver unless
somebody was appointed to receive. In this view of the subject, the
question which presents itself to my mind is, who shall judge whether the
French Government does, or does not, faithfully comply with the previous
condition? The bill on your table gives to the President this power. I am
for our retaining and exercising it ourselves. I may be asked, why not
delegate this power to the President? Sir, I answer by inquiring why we
should delegate it? To us it properly belongs; and, unless some advantage
will be derived to the United States, it shall not be transferred with
my consent. Congress will be in session at the time that the delivery
of the ceded territory takes place; and if we should then be satisfied
that the French have executed with fidelity that part of the treaty
which is incumbent upon them first to perform, I pledge myself to vote
for the payment of the purchase money. This appears to me, arguing upon
general principles, to be the course which ought to be pursued, even
supposing there were attending this case no particular difficulties.
But in this special case are there not among the archives of the Senate
sufficient documents, and which have been withheld from the House of
Representatives, to justify an apprehension that the French Government
was not invested with the capacity to convey this property to us, and
that we shall not receive that kind of possession which is stipulated for
by the treaty? I am not permitted, by the order of this body, to make
any other than this general reference to those documents. Suffice it to
say that they have strongly impressed me with an opinion that, even if
possession is rendered to us, the territory will come into our hands
without any title to justify our holding it.
Mr. JACKSON.--Mr. President: The honorable gentleman (Mr. WELLS) has
said that the French have no title, and, having no title herself, we can
derive none from her. Is not, I ask, the King of Spain’s proclamation,
declaring the cession of Louisiana to France, and his orders to his
Governor and officers to deliver it to France, a title? Do nations
give any other? I believe the honorable gentleman can find no solitary
instance of feofment or conveyance between States. The treaty of St.
Ildefonso was the groundwork of the cession, and whatever might have been
the terms to be performed by France, the King of Spain’s proclamation
and orders have declared to all the world that they were complied with.
The honorable gentleman, however, insists that there is no consideration
expressed in the treaty, and therefore it must be void; if the honorable
gentleman will but look attentively at the ninth article, I am persuaded
he will perceive one: the conventions are made part of the treaty; they
are declared to have execution in the same manner, as if they had been
inserted in the treaty; they are to be ratified in the same form, and
at the same time, so that the one shall not be distinct from the other.
What inference can possibly be drawn, but that the payments to be made by
them were full consideration for Louisiana? But the honorable gentleman
lays stress on that part of the treaty which declares that “the First
Consul of the French Republic, desiring to give to the United States a
strong proof of his friendship, doth hereby cede to the United States
the territory,” &c.; inferring from thence that our title rests on the
friendship of Buonaparte alone. Sir, let my opinion of the present
Government of France be what it may, and I confess it is not very
favorable, Buonaparte, by the consent of the nation, is placed at its
head; he is the organ through which the will of the nation is expressed,
and is and must be respected as such by all other Powers. No nation has
a right to interfere with the rule or police of another. It is enough
that the nation wills it, and Buonaparte’s act is the act of the whole
nation, which cannot recall it, even if Buonaparte should cease to govern
and another form of government be adopted. Last session we were impressed
with the necessity of taking immediate possession of the island of New
Orleans in the face of two nations, and now we entertain doubts if we can
combat the weakest of those Powers; and we are further told we are going
to sacrifice the immense sum of fifteen millions of dollars, and have to
go to war with Spain for the country afterwards; when, last session, war
was to take place at all events, and no costs were equal to the object.
Gentlemen seem to be displeased, because we have procured it peaceably,
and at probably ten times less expense than it would have cost us had we
taken forcible possession of New Orleans alone, which, I am persuaded,
would have involved us in a war which would have saddled us with a debt
of from one to two hundred millions, and perhaps have lost New Orleans,
and the right of deposit, after all. I again repeat, sir, that I do not
believe that Spain will venture war with the United States. I believe
she dare not; if she does, she will pay the costs. The Floridas will be
immediately ours; they will almost take themselves. The inhabitants pant
for the blessings of your equal and wise Government; they ardently long
to become a part of the United States. An officer, duly authorized, and
armed with the bare proclamation of the President, would go near to take
them; the inhabitants by hundreds would flock to his standard, the very
Spanish force itself would assist in their reduction; it is composed
principally of the Irish brigade and Creoles--the former disaffected, and
the latter the dregs of mankind. With two or three squadrons of dragoons,
and the same number of companies of infantry, not a doubt ought to exist
of the total conquest of East Florida by an officer of tolerable talents.
Exclusive, however, of the loss of the Floridas, to use the language of
a late member of Congress, the road to Mexico is now open to us, which,
if Spain acts in an amicable way, I wish may, and hope will, be shut, as
respects the United States, for ever. For these reasons, I think, sir,
Spain will avoid a war, in which she has nothing to gain and every thing
to lose.
Mr. President, the honorable gentleman appears to be extremely
apprehensive of vesting the powers delegated by the bill, now on its
passage, in the President, and wishes to retain it in the Legislature.
Is this a Legislative or an Executive business? Assuredly, in my mind,
of the latter nature. The President gave instructions for, and, with
our consent, ratified the treaty. We have given him the power to take
possession, which his officers are at this moment doing; and surely,
as the ostensible party, the representative of the sovereignty to whom
France will alone look, he ought to possess the power of fulfilling
our part of the contract. Gentlemen, indeed, had doubted, on a former
occasion, the propriety of giving the President the power of taking
possession and organizing a temporary government, which every inferior
officer, in case of conquest or cession, from the general to the
subaltern, if commanding, has a right to do; but I little expected these
doubts after we had gone so far. For my part, sir, I have none of those
fears. I believe the President will be as cautious as ourselves, and the
bill is as carefully worded as possible; for the money is not to be paid
until after Louisiana shall be placed in our possession.
Mr. WRIGHT.--Mr. President, I presumed from the observations of the
honorable gentleman from Delaware, (Mr. WELLS,) that he had not minutely
attended to the provisions of this bill, on which the transfer of this
stock is made expressly to depend. The treaty has in the most guarded
manner secured us in the possession of the ceded territory, as a
condition precedent to the payment of the purchase money, and this bill
has expressly provided that no part of the stock shall be transferred
till the possession stipulated by the treaty shall have been obtained.
Not such a possession as the gentleman has said the President may be
satisfied with--“the delivery of a twig and turf, or the knocker of
a door.” The treaty has defined the possession intended: it is the
possession of Louisiana, the island and city of New Orleans, with the
forts and arsenals, the troops having been withdrawn from thence. But,
sir, from his remarks, it would seem that his objections to this bill
had been predicated on his want of confidence in the Executive, as he
has expressed his fears that the stock would be transferred, before
the prerequisite conditions had been performed. He says, we ought to
be satisfied that the possession stipulated by the treaty shall have
been delivered up before we pass this bill. Has he forgot that, by
the constitution, the President is to superintend the execution of
the law? Or has he forgot that treaties are the supreme law of the
land? Or why, while he professes to respect this constitution, does he
oppose the commission of the execution of this law to that organ of the
Government to which it has been assigned by the constitution? Why, I
ask, does he distrust the President? Has he not been, throughout the
whole of this business, very much alive to the peaceful acquisition of
this immense territory, and the invaluable waters of the Mississippi? a
property which, but the other day, we were told was all-important, and
so necessary to our political existence that if it was not obtained the
Western people would sever themselves from the Union. This property,
for which countless millions were then proposed to be expended, and the
best blood of our citizens to be shed, and which then was to be had
at all hazards, _per fas aut per nefas_, seems now to have lost its
worth, and it would seem as if some gentlemen could not be satisfied
with the purchase, because our title was not recorded in the blood of
its inhabitants. But that this is not the wish of the American people,
has been unequivocally declared by their immediate representatives
in Congress, as well as by this House, who had each expressed their
approbation of the peaceful title we had acquired, by majorities I
thought not to be misunderstood. And the gentleman, although he voted for
the ratification of the treaty, now again calls on us to investigate the
title. It is certainly too late.
Mr. PICKERING said, if he entertained the opinion just now expressed by
the gentleman from Delaware, (Mr. WELLS,) of the binding force of all
treaties made by the President and Senate, he should think it to be his
duty to vote for the bill now under consideration. “The constitution,
and the laws of the United States made in pursuance thereof, and all
treaties made, or which shall be made under the authority of the United
States, shall be the supreme law of the land.”--But a treaty to be
thus obligatory, must not contravene the constitution, nor contain any
stipulations which transcend the powers therein given to the President
and Senate. The treaty between the United States and the French Republic,
professing to cede Louisiana to the United States, appeared to him
to contain such an exceptionable stipulation--a stipulation which
cannot be executed by any authority now existing. It is declared in
the third article, that “the inhabitants of the ceded territory shall
be incorporated in the Union of the United States.” But neither the
President and Senate, nor the President and Congress, are competent
to such an act of incorporation. He believed that our Administration
admitted that this incorporation could not be effected without an
amendment of the constitution; and he conceived that this necessary
amendment could not be made in the ordinary mode by the concurrence
of two-thirds of both Houses of Congress, and the ratification by the
Legislatures of three-fourths of the several States. He believed the
assent of each individual State to be necessary for the admission of a
foreign country as an associate in the Union; in like manner as in a
commercial house, the consent of each member would be necessary to admit
a new partner into the company; and whether the assent of every State
to such an indispensable amendment were attainable, was uncertain. But
the articles of a treaty were necessarily related to each other; the
stipulation in one article being the consideration for another. If,
therefore, in respect to the Louisiana Treaty, the United States fail
to execute, and within a reasonable time, the engagement in the third
article, (to incorporate that territory into the Union,) the French
Government will have a right to declare the whole treaty void. We must
then abandon the country, or go to war to maintain our possession. But
it was to prevent war that the pacific measures of the last winter were
adopted--they were to “lay the foundation for future peace.”
Mr. P. had never doubted the right of the United States to acquire new
territory, either by purchase or by conquest, and to govern the territory
so acquired as a dependent province; and in this way might Louisiana have
become a territory of the United States, and have received a form of
government infinitely preferable to that to which its inhabitants are now
subject.
Mr. DAYTON.--As the honorable gentleman from Massachusetts has quoted
what was suggested by me in a former debate, to deduce from it an
inference which the information I gave can by no means warrant, I must
be allowed the liberty of correcting him. When I said that there existed
an essential difference between the French and Spanish officers at New
Orleans as to the real boundaries of the province of Louisiana, I did not
mean to insinuate that this disagreement extended so far as an opposition
to the French taking possession. It was a question of limits only,
varying, however, so much in extent as would have produced a serious
altercation between those two countries, although closely allied.
The Spanish Governor had taken it upon himself to proclaim that the
province lately ceded and about to be given over to France would be
confined on the east of the Mississippi to the river Iberville, and the
lakes Maurepas and Pontchartrain, or in other words to the island of New
Orleans; but the French Prefect on the contrary declared that he neither
had nor would give his assent to the establishment of those limits, which
would be regarded no longer than until the arrival of their troops.
The same gentleman (Mr. PICKERING) has said that the advocates of this
measure seem to rely much more upon their power than upon their right,
and in this assertion I am compelled to say that he has done us very
great injustice. The title of the French is founded upon the often quoted
treaty of St Ildefonso, confirmed by the royal order signed by the King
of Spain himself, so lately as the 15th October, 1802, directing the
delivery of the “colony of Louisiana and its dependencies as well as of
the city and island of New Orleans, without any exception, to General
Victor, or other officer duly authorized by that Republic to take charge
of the said delivery.”
When at New Orleans in July last, I obtained from the best source a
translated copy of that royal order, and can aver that it absolutely
directs possession to be given without reservation or condition. It is
not, and cannot be, denied that the lately ratified treaty of Paris
transfers to us completely all the title acquired by France in virtue of
the first treaty and order alluded to. We have, then, most incontestably,
the right of possession, and our object now is, by passing the bill
before us to obtain the possession itself, which we can certainly never
effect, consistently with good faith, if the reasonings and objections
of my honorable friends from Delaware and Massachusetts should prevail.
We are asked by the same gentlemen what will be the consequence if it
shall appear that the royal order has been revoked? I answer, first, that
it is not in the least degree probable, for neither of them pretend to
have heard of such revocation, nor is it intimated in the confidential
communications before the Senate. But admitting for argument’s sake that
it were revoked, of what avail could it be against a third party, who
had in the mean time become a _bona fide_ purchaser? Shall one nation
give to another a written, formal evidence of transfer of territory, and
revoke it at pleasure, especially after a third shall have been tempted
and induced by that very evidence of title to contract for the purchase
of it? Would an act so fraudulent be countenanced between individuals in
a court of equity? Could it be justified between nations in a high court
of honor? The honorable gentleman from Delaware has taken a more delicate
ground of objection. He has insinuated that there exists in the knowledge
of the Senate, the evidence of a serious opposition to our possessing
that country, which, if known to the other branch of the Legislature,
would probably have defeated this bill in its progress there. Allusions
artfully made in this manner to documents communicated under the
injunction of secrecy, place us in an embarrassing situation. Forbidden
by our rules to expose the papers referred to, even in argument, we
can only declare what impressions they have made upon ourselves. Every
Senator must understand him, every one must have heard and read, and
weighed deliberately the contents of those documents, and, for myself, I
am free to avow my belief, that, if known to every member of the other
House, they would have had no effect against this bill, but would rather
have quickened and ensured its progress, for such is the influence they
have upon me.
Mr. TAYLOR.--There have been, Mr. President, two objections made against
the treaty; one that the United States cannot constitutionally acquire
territory; the other, that the treaty stipulates for the admission of a
new State into the Union; a stipulation which the treaty-making power
is unable to comply with. To these objections I shall endeavor to give
answers not heretofore urged.
Before a confederation, each State in the Union possessed a right, as
attached to sovereignty, of acquiring territory, by war, purchase, or
treaty. This right must be either still possessed, or forbidden both to
each State and to the General Government, or transferred to the General
Government. It is not possessed by the States separately, because war
and compacts with foreign powers and with each other are prohibited to
a separate State; and no other means of acquiring territory exist. By
depriving every State of the means of exercising the right of acquiring
territory, the constitution has deprived each separate State of the
right itself. Neither the means nor the right of acquiring territory are
forbidden to the United States; on the contrary, in the fourth article
of the constitution, Congress is empowered “to dispose of and regulate
the territory belonging to the United States.” This recognizes the right
of the United States to hold territory. The means of acquiring territory
consist of war and compact; both are expressly surrendered to Congress
and forbidden to the several States; and no right in a separate State
to hold territory without its limits is recognized by the constitution,
nor any mode of effecting it possible, consistent with it. The means
of acquiring and the right of holding territory, being both given to
the United States, and prohibited to each State, it follows that these
attributes of sovereignty once held by each State are thus transferred
to the United States; and that, if the means of acquiring and the right
of holding, are equivalent to the right of acquiring territory, then
this right merged from the separate States to the United States, as
indispensably annexed to the treaty-making power, and the power of making
war; or, indeed, is literally given to the General Government by the
constitution.
Having proved, sir, that the United States may constitutionally acquire,
hold, dispose of, and regulate territory, the other objection to be
considered is, whether the third article of the treaty does stipulate
that Louisiana shall be erected into a State? It is conceded that the
treaty-making power cannot, by treaty, erect a new State, however they
may stipulate for it. I premise, that in the construction of this
article, it is proper to recollect that the negotiators must be supposed
to have understood our constitution. It became very particularly their
duty to do so, because, in this article itself, they have recited “the
principles of the constitution” as their guide. Hence, it is obvious,
they did not intend to infringe, but to adhere to those principles;
and therefore, if the article will admit of a construction consistent
with this presumable knowledge and intention of the negotiators, the
probability of its accuracy will be greater than one formed in a
supposition that the negotiators were either ignorant of that which
they ought to have known, or that they fraudulently professed a purpose
which they really intended to defeat. The following construction is
reconcilable with what the negotiators ought to have known, and with what
they professed to intend.
Recollect, sir, that it has been proved that the United States may
acquire territory. Territory, so acquired, becomes from the acquisition
itself a portion of the territories of the United States, or may be
united with their territories without being erected into a State. A union
of territory is one thing; of States, another. Both are exemplified by
an actual existence. The United States possess territory, comprised in
the union of territory, and not in the union of States. Congress is
empowered to regulate or dispose of territorial sections of the Union,
and have exercised the power; but it is not empowered to regulate or
dispose of State sections of the Union. The citizens of these territorial
sections are citizens of the United States, and they have all the rights
of citizens of the United States; but such rights do not include those
political rights arising from State compacts or governments, which
are dissimilar in different States. Supposing the General Government
or treaty-making power have no right to add or unite States and State
citizens to the Union, yet they have a power of adding or uniting to it
territory and territorial citizens of the United States.
The territory is ceded by the first article of the treaty. It will no
longer be denied that the United States may constitutionally acquire
territory. The third article declares that “the inhabitants of the ceded
territory shall be incorporated in the Union of the United States.”
And these words are said to require the territory to be erected into a
State. This they do not express, and the words are literally satisfied
by incorporating them into the Union as a Territory, and not as a State.
The constitution recognizes and the practice warrants an incorporation
of a Territory and its inhabitants into the Union, without admitting
either as a State. And this construction of the first member of the
article is necessary to shield its two other members from a charge of
surplusage, and even absurdity. For if the words “the inhabitants of the
ceded territory shall be incorporated in the Union of the United States”
intended that Louisiana and its inhabitants should become a State in the
Union of States, there existed no reason for proceeding to stipulate that
these same inhabitants should be made “citizens as soon as possible,
according to the principles of the Federal Constitution.” Their admission
into the Union of States would have made them citizens of the United
States. Is it not then absurd to suppose that the first member of this
third article intended to admit Louisiana into the Union as a State,
which would instantly entitle the inhabitants to the benefit of the
article of the constitution declaring, that “the citizens of each State
shall be entitled to all the privileges and immunities of citizens in the
several States,” and yet to have gone on to stipulate for citizenship,
under the limitation “as soon as possible, according to the principles of
the Federal Constitution,” after it had been bestowed without limitation?
Again, the concluding member of the article is to bestow “protection
in the mean time;” incorporating this stipulation, and the stipulation
for citizenship, with the construction which accuses the treaty of
unconstitutionality, the article altogether must be understood thus:
“The inhabitants of the ceded territory shall be taken into the Union of
States, which will instantly give them all the rights of citizenship,
after which they shall be made citizens as soon as possible; and after
they are taken into the Union of States, they shall be protected in the
interim between becoming a State in the Union, and being made citizens,
in their liberty, property, and religion.”
By supposing the first member of the article to require that the
inhabitants and their territory shall be incorporated in the Union,
in the known and recognized political character of a Territory,
these inconsistencies are avoided, and the article reconciled to the
constitution, as understood by the opposers of the bill; the stipulation
also for citizenship “as soon as possible” according to the principles
of the constitution, and the delay meditated by these words, and the
subsequent words “in the mean time,” so utterly inconsistent with the
instantaneous citizenship, which would follow an admission into the Union
as a State, are both fully explained. Being incorporated in the Union as
a Territory, and not as a State, a stipulation for citizenship became
necessary; whereas it would have been unnecessary had the inhabitants
been incorporated as a State, and not as a Territory. And as they were
not to be invested with citizenship by becoming a State, the delay which
would occur between the incorporation of the Territory into the Union and
the arrival of the inhabitants to citizenship according to the principles
of the constitution, under some uniform rule of naturalization, exhibited
an interim which demanded the concluding stipulation, for “protection in
the mean time for liberty, property, and religion.” As a State of the
Union, they would not have needed a stipulation for the safety of their
“liberty, property and religion;” as a Territory, this stipulation would
govern and restrain the undefined power of Congress to make “rules and
regulations for Territories.”
Mr. TRACY.--Mr. President: I shall vote against this bill, and will give
some of the reasons which govern my vote in this case.
It is well known that this bill is introduced to carry into effect
the treaty between the United States and France, which has been lately
ratified. If that treaty be an unconstitutional compact, such a one
as the President and Senate had no rightful authority to make, the
conclusion is easy, that it creates no obligation on any branch or
member of the Government to vote for this bill, or any other, which is
calculated to carry into effect such unconstitutional compact.
The third and seventh articles of the treaty are, in my opinion,
unconstitutional.
The third article is in the following words:
“The inhabitants of the ceded territory shall be incorporated
into the Union of the United States, and admitted, as soon
as possible, according to the principles of the Federal
Constitution, to the enjoyment of all the rights, advantages,
and immunities of citizens of the United States, and, in the
mean time, they shall be maintained in the free enjoyment of
their liberty, property, and the religion they profess.”
The obvious meaning of this article is, that the inhabitants of Louisiana
are incorporated, by it, into the Union, upon the same footing that the
Territorial Governments are, and, like them, the Territory, when the
population is sufficiently numerous, must be admitted as a State, with
every right of any other State.
Have the President and Senate a constitutional right to do all this?
When we advert to the constitution, we shall find that the President, by
and with the advice and consent of the Senate, may make treaties. Now,
say gentlemen, this power is undefined, and one gentleman says, it is
unlimited.
True, there is no definition in words of the extent and nature of the
treaty-making power. Two modes of ascertaining its extent have been
mentioned: one is, by ascertaining the extent of the same power among the
monarchs of Europe, and making that the standard of the treaty-making
power here; and the other is, to limit the power of the President and
Senate, in respect to treaties, by the constitution and the nature and
principles of our Government.
Upon the first criterion, it is obvious that we cannot obtain any
satisfactory definition of the treaty-making power, as applicable to our
Government.
The paragraph in the constitution, which says that “new States may
be admitted by Congress into this Union,” has been quoted to justify
this treaty. To this, two answers may be given, either of which are
conclusive in my favor. First, if Congress have the power collectively
of admitting Louisiana, it cannot be vested in the President and Senate
alone. Secondly, Congress have no power to admit new foreign States
into the Union, without the consent of the old partners. The article
of the constitution, if any person will take the trouble to examine
it, refers to domestic States only, and not at all to foreign States;
and it is unreasonable to suppose that Congress should, by a majority
only, admit new foreign States, and swallow up, by it, the old partners,
when two-thirds of all the members are made requisite for the least
alteration in the constitution. The words of the constitution are
completely satisfied by a construction which shall include only the
admission of domestic States, who were all parties to the Revolutionary
war, and to the compact; and the spirit of the association seems to
embrace no other. But I repeat it, if the Congress collectively has this
power, the President and Senate cannot, of course, have it exclusively.
I think, sir, that, from a fair construction of the constitution, and
an impartial view of the nature and principles of our association,
the President and Senate have not the power of thus obtruding upon us
Louisiana.
The seventh article admits for twelve years the ships of France and
Spain into the ceded territory, free of foreign duty. This is giving a
commercial preference to those ports over the other ports of the United
States; because it is well known that a duty of forty-four cents on
tonnage, and ten per cent. on duties, are paid by all foreign ships
or vessels in all the ports of the United States. If it be said we
must repeal those laws, and then the preference will cease, the answer
is, that this seventh article gives the exclusive right of entering
the ports of Louisiana to the ships of France and Spain, and if our
discriminating duties were repealed this day, the preference would be
given to the ports of the United States against those of Louisiana, so
that the preference, by any regulation of commerce or revenue, which the
constitution expressly prohibits from being given to the ports of one
State over those of another, would be given by this treaty, in violation
of the constitution. I acknowledge, if Louisiana is not admitted into
the Union, and that if there is no promise to admit her, then this part
of our argument will not apply; but, in declaring these to be facts, my
opponents are driven to acknowledge that the third article of this treaty
is void, which answers every purpose which I wish to establish, that
this treaty is unconstitutional and void, and that I have, consequently,
a right to withhold my vote from any bill which shall be introduced
to carry it into effect. I acknowledge, sir, that my opinion ever has
been, and still is, that when a treaty is ratified by the constituted
authorities, and is a constitutional treaty, every member of the
community is bound by it, as a law of the land; but not so by a treaty
which is unconstitutional. The terms of this treaty may be extravagant
and unwise, yet, in my legislative capacity, that can form no excuse
for an opposition; we may have no title, we may have given an enormous
sum, we may have made a silly attempt to destroy the discriminating
duties, yet, if the treaty be not unconstitutional, every member of the
Government is bound to carry it into effect.
Mr. BRECKENRIDGE observed, that he little expected a proceeding so much
out of order would have been attempted, as a re-discussion of the merits
of the treaty on the passage of this bill; but as the gentlemen in the
opposition had urged it, he would, exhausted as the subject was, claim
the indulgence of the Senate in replying to some of their remarks.
No gentleman, continued he, has yet ventured to deny, that it is
incumbent on the United States to secure to the citizens of the western
waters, the uninterrupted use of the Mississippi. Under this impression
of duty, what has been the conduct of the General Government, and
particularly of the gentlemen now in the opposition, for the last eight
months? When the right of deposit was violated by a Spanish officer
without authority from his Government, these gentlemen considered our
national honor so deeply implicated, and the rights of the western people
so wantonly violated, that no atonement or redress was admissible, except
through the medium of the bayonet. Negotiation was scouted at. It was
deemed pusillanimous, and was said to exhibit a want of fellow-feeling
for the western people, and a disregard to their essential rights.
Fortunately for their country, the counsel of these gentlemen was
rejected, and their war measures negatived. The so much scouted process
of negotiation was, however, persisted in, and instead of restoring the
right of deposit, and securing more effectually for the future our right
to navigate the Mississippi, the Mississippi itself was acquired, and
every thing which appertained to it. I did suppose that those gentlemen,
who at the last session so strongly urged war measures for the attainment
of this object, upon an avowal that it was too important to trust to
the tardy and less effectual process of negotiation, would have stood
foremost in carrying the treaty into effect, and that the peaceful mode
by which it was acquired would not lessen with them the importance of
the acquisition. But it seems to me, sir, that the opinions of a certain
portion of the United States with respect to this ill-fated Mississippi,
have varied as often as the fashions. [Here Mr. B. made some remarks on
the attempts which were made in the old Congress, and which had nearly
proved successful, to cede this river to Spain for twenty-five years.]
But, I trust, continued he, these opinions, schemes, and projects will
for ever be silenced and crushed by the vote which we are this evening
about to pass.
Permit me to examine some of the principal reasons which are deemed so
powerful by gentlemen as to induce them to vote for the destruction of
this treaty. Unfortunately for the gentlemen, no two of them can agree
on the same set of objections; and what is still more unfortunate, I
believe there are no two of them concur in any one objection. In one
thing only they seem to agree, and that is to vote against the bill. An
honorable gentleman from Delaware (Mr. WHITE) considered the price to be
enormous. An honorable gentleman from Connecticut, who has just sat down,
(Mr. TRACY,) says he has no objection whatever to the price; it is, he
supposes, not too much. An honorable gentleman from Massachusetts (Mr.
PICKERING) says that France acquired no title from Spain, and therefore
our title is bad. The same gentleman from Connecticut (Mr. TRACY) says
he has no objection to the title from France; he thinks it a good one.
The gentleman from Massachusetts (Mr. PICKERING) contends that the United
States cannot under the constitution acquire foreign territory. The
gentleman from Connecticut is of a different opinion, and has no doubt
but that the United States can acquire and hold foreign territory; but
that Congress alone have the power of incorporating that territory into
the Union. What weight, therefore, ought all their lesser objections to
be entitled to, when they are at war among themselves on the greater one?
The same gentleman has told us, that this acquisition will, from its
extent, soon prove destructive to the confederacy.
This, continued Mr. B., is an old and hackneyed doctrine; that a republic
ought not to be too extensive. But the gentleman has assumed two facts,
and then reasoned from them. First, that the extent is too great; and
secondly, that the country will be soon populated. I would ask, sir,
what is his standard extent for a republic? How does he come at that
standard? Our boundary is already extensive. Would his standard extent be
violated by including the island of Orleans and the Floridas? I presume
not, as all parties seem to think their acquisition, in part or in whole,
essential. Why not then acquire territory on the west, as well as on the
east side of the Mississippi? Is the Goddess of Liberty restrained by
water courses? Is she governed by geographical limits? Is her dominion
on this continent confined to the east side of the Mississippi? So far
from believing in the doctrine that a republic ought to be confined
within narrow limits, I believe, on the contrary, that the more extensive
its dominion the more safe and more durable it will be. In proportion
to the number of hands you intrust the precious blessings of a free
government to, in the same proportion do you multiply the chances for
their preservation. I entertain, therefore, no fears for the confederacy
on account of its extent.
I had hoped, sir, that the gentleman from Connecticut, (Mr. TRACY,) from
the trouble he was so good as to give himself yesterday in assisting to
amend this bill, would have voted for it; but it seems he is constrained
to vote to-day against it. He asks, if the United States have power to
acquire and add new States to the Union, can they not also cede States?
Can they not, for example, cede Connecticut to France? I answer they
cannot; but for none of the reasons assigned by him. The Government of
the United States cannot cede Connecticut, because, first, it would be
annihilating part of that sovereignty of the nation which is whole and
entire, and upon which the Government of the United States is dependent
for its existence; and secondly, because the fourth section of the
fourth article of the constitution forbids it. But how does it follow
as a consequence, that because the United States cannot cede an existing
State, they cannot acquire a new State? He admits explicitly that
Congress may acquire territory and hold it as a territory, but cannot
incorporate it into the Union. By this construction he admits the power
to acquire territory, a modification infinitely more dangerous than
the unconditional admission of a new State; for by his construction,
territories and citizens are considered and held as the property of
the Government of the United States, and may consequently be used as
dangerous engines in the hands of the Government against the States and
people.
Could we not, says the same gentleman, incorporate in the Union some
foreign nation containing ten millions of inhabitants--Africa, for
instance--and thereby destroy our Government? Certainly the thing would
be possible if Congress would do it, and the people consent to it; but it
is supposing so extreme a case and is so barely possible, that it does
not merit serious refutation. It is also possible and equally probable
that republicanism itself may one day or other become unfashionable,
(for I believe it is not without its enemies,) and that the people of
America may call for a king. From such hypotheses it is impossible to
deduce any thing for or against the construction contended for. The true
construction must depend on the manifest import of the instrument and the
good sense of the community.
The same gentleman, in reply to the observations which fell from the
gentleman from South Carolina, as to the admission of new States,
observes, that although Congress may admit new States, the President and
Senate, who are but a component part, cannot. Apply this doctrine to
the case before us. How could Congress by any mode of legislation admit
this country into the Union until it was acquired? And how can this
acquisition be made except through the treaty-making power? Could the
gentleman rise in his place and move for leave to bring in a bill for the
purchase of Louisiana and its admission into the Union? I take it that
no transaction of this or any other kind with a foreign power can take
place except through the Executive Department, and that in the form of a
treaty, agreement, or convention. When the acquisition is made, Congress
can then make such disposition of it as may be expedient.
Mr. ADAMS.--It is not my intention to trespass long upon the patience
of the Senate, on a subject which has already been debated almost to
satiety; but, as objections on constitutional grounds have been raised
against the bill under discussion, I wish to say a very few words in
justification of the vote which I think it my duty to give.
The objections against the passage of the bill, as far as my recollection
serves me, are two: the first, started by the honorable gentleman from
Delaware who opened this debate; the second, urged by several of the
other members who have spoken upon the question.
The gentleman from Delaware admits the necessity of making the provision
for carrying into execution, on our part, the treaty which has been duly
ratified by the Senate, _provided_ we can obtain complete and undoubted
possession of the territory ceded us by France, in that treaty. But
he observes, that the term possession is indefinite; that it may mean
nothing more than the delivery of a twig, or of the knob of a door. That,
from sources of the authenticity of which we have no reason to doubt,
we are informed that Spain is very far from acquiescing in the cession
of this territory to us; that probably the Spanish officers will not
deliver peaceable possession; and that we ought not to put out of our
own hands the power of withholding the payment of this money, until it
shall be ascertained, beyond all question, that the territory, for which
it is the consideration, is in our hands. But, sir, admitting that the
word possession were of itself not sufficiently precise, I think, with
the gentleman last up, that the fourth and fifth articles of the treaty,
read by him, render it so in this instance. The fourth, stipulating
that the French commissary shall do _every act necessary_ to receive
the country from the Spanish officers, and transmit it to the agent
of the United States--and the fifth, providing, not only that all the
_military posts_ shall be delivered to us, and that the troops, whether
of France or Spain, shall cease to occupy them, but that those troops
shall all be embarked within three months after the ratification of the
treaty. Now, when the country has been formally surrendered to us, when
all the military posts are in our hands, and when all the troops, French
or Spanish, have been embarked, what possible adverse possession can
there be to contend against ours? Until all these conditions shall have
been fulfilled on the part of France, neither the convention nor the
bill before us requires the payment of money on ours; and we may safely
trust the execution of the law to the discretion of the President of the
United States. For, even if I could see any reason for distrusting him
in the exercise of such a power, under different circumstances, which I
certainly do not, still, in the present case, his own interest, and the
weight of responsibility resting upon him, are ample security to us,
against any undue precipitation on his part, in the payment of the money.
On the other hand, I am extremely solicitous that every tittle of the
engagements on our part in these conventions should be performed with the
most scrupulous good faith, and I see no purpose of utility that can be
answered by postponing the determination on the passage of this bill.
But it has been argued that the bill ought not to pass, because the
treaty itself is unconstitutional, or, to use the words of the gentleman
from Connecticut, an extra-constitutional act; because it contains
engagements which the powers of the Senate were not competent to ratify,
the powers of Congress not competent to confirm, and, as two of the
gentlemen have contended, not even the Legislatures of the number of
States requisite to effect an amendment of the constitution are adequate
to sanction. It is therefore, say they, a nullity; we cannot fulfil
our part of its conditions, and on our failure in the performance of
any one stipulation, France may consider herself as absolved from the
obligations of the whole treaty on her. I do not conceive it necessary
to enter into the merits of the treaty at this time. The proper occasion
for that discussion is past. But, allowing even that this is a case for
which the constitution has not provided, it does not in my mind follow,
that the treaty is a nullity, or that its obligations, either on us or
on France, must necessarily be cancelled. For my own part, I am free to
confess, that the third article, and more especially the seventh, contain
engagements placing us in a dilemma, from which I see no possible mode
of extricating ourselves but by an amendment, or rather an addition to
the constitution. The gentleman from Connecticut, (Mr. TRACY,) both
on a former occasion, and in this day’s debate, appears to me to have
shown this to demonstration. But what is this more than saying, that the
President and Senate have bound the nation to engagements which require
the co-operation of more extensive powers than theirs, to carry them into
execution? Nothing is more common, in the negotiations between nation
and nation, than for a minister to agree to and sign articles beyond
the extent of his powers. This is what your ministers, in the very case
before you, have confessedly done. It is well known that their powers
did not authorize them to conclude this treaty; but they acted for the
benefit of their country, and this House by a large majority has advised
to the ratification of their proceedings. Suppose then, not only that
the ministers who signed, but the President and Senate who ratified this
compact, have exceeded their powers. Suppose that the other House of
Congress, who have given their assent by passing this and other bills
for the fulfilment of the obligations it imposes on us, have exceeded
their powers. Nay, suppose even that the majority of States competent
to amend the constitution in other cases, could not amend it in this,
without exceeding their powers--and this is the extremest point to which
any gentleman on this floor has extended his scruples--suppose all this,
and there still remains in the country a power competent to adopt and
sanction every part of our engagements, and to carry them entirely into
execution. For, notwithstanding the objections and apprehensions of many
individuals, of many wise, able and excellent men, in various parts of
the Union, yet such is the public favor attending the transaction which
commenced by the negotiation of this treaty, and which I hope will
terminate in our full, undisturbed and undisputed possession of the ceded
territory, that I firmly believe if an amendment to the constitution,
amply sufficient for the accomplishment of every thing for which we have
contracted, shall be proposed, as I think it ought, it will be adopted
by the Legislature of every State in the Union. We can therefore fulfil
our part of the conventions, and this is all that France has a right to
require of us.
Mr. NICHOLAS.--Mr. President: The gentlemen on the other side differ
among themselves. The two gentlemen from Delaware say, that if peaceable
possession is given of Louisiana this bill ought to pass; the other
gentlemen who have spoken in opposition to it have declared, that if they
believed the constitution was not violated by the treaty, they should
think themselves bound to vote for the bill. To this Senate it cannot
be necessary to answer arguments denying the power of the Government to
make such a treaty; it has already been affirmed, so far as we could
affirm it, by two-thirds of this body; it is then only now necessary to
show that we ought to pass the bill at this time. In addition to the
reasons which have been so ably and forcibly urged by my friends, I will
remark, that the treaty-making power of this Government is so limited,
that engagements to pay money cannot be carried into effect without the
consent and co-operation of Congress. This was solemnly decided, after a
long discussion of several weeks, by the House of Representatives, which
made the appropriations for carrying the British treaty into effect,
and such I believe is the understanding of nine-tenths of the American
people, as to the construction of their constitution. This decision
must be also known to foreigners, and if not, they are bound to know
the extent of the powers of the Government with which they treat. If
this bill should be rejected, I ask gentlemen whether they believe, that
France would or ought to execute the treaty on her part? It is known to
the French Government that the President and Senate cannot create stock,
nor provide for the payment of either principal or interest of stock; and
if that Government should be informed that a bill, authorizing the issue
of stock to pay for the purchase, “after possession shall be delivered,”
had been rejected by the only department of our Government competent to
the execution of that part of the treaty, they would have strong ground
to suspect that we did not mean to execute the treaty on our part;
particularly when they are informed, that the arguments most pressed in
opposition to the bill were grounded upon a belief that the Government of
the United States had not a constitutional power to execute the treaty.
Of one thing I am confident, that if they have the distrust of us which
some gentlemen have this day expressed of them, the country will not be
delivered to the agents of our Government should this bill be rejected.
The gentleman from Connecticut (Mr. TRACY) muse consider the grant of
power to the Legislature as a limitation of the treaty-making power,
for he says, “that the power to admit new States and to make citizens
is given to Congress, and not to the treaty-making power;” therefore an
engagement in a treaty to do either of these things is unconstitutional.
I cannot help expressing my surprise at that gentleman’s giving that
opinion, and I think myself justifiable in saying, that if it is now
his opinion, it was not always so. The contrary opinion is the only
justification of that gentleman’s approbation of the British treaty,
and of his vote for carrying it into effect. By that treaty a great
number of persons had a right to become American citizens immediately;
not only without a law, but contrary to an existing law. And by that
treaty many of the powers specially given to Congress were exercised by
the treaty-making power. It is for gentlemen who supported that treaty,
to reconcile the construction given by them to the constitution in its
application to that instrument, with their exposition of it at this time.
If the third article of the treaty is an engagement to incorporate the
Territory of Louisiana into the Union of the United States, and to make
it a State, it cannot be considered as an unconstitutional exercise of
the treaty-making power; for it will not be asserted by any rational man
that the territory is incorporated as a State by the treaty itself, when
it is expressly declared that “the inhabitants shall be incorporated
in the Union of the United States, and admitted as soon as possible,
according to the principles of the Federal Constitution.” Evidently
referring the question of incorporation, in whatever character it was to
take place, to the competent authority; and leaving to that authority to
do it, at such time, and in such manner, as they may think proper. If,
as some gentlemen suppose, Congress possess this power, they are free
to exercise it in the manner that they may think most conducive to the
public good. If it can only be done by an amendment to the constitution,
it is a matter of discretion with the States whether they will do it
or not; for it cannot be done “according to the principles of the
Federal Constitution,” if the Congress or the States are deprived of
that discretion, which is given to the first, and secured to the last,
by the constitution. In the third section of the fourth article of the
constitution it is said, “New States may be admitted by the Congress
into this Union.” If Congress have the power, it is derived from this
source; for there are no other words in the constitution that can, by
any construction that can be given to them, be considered as conveying
this power. If Congress have not this power, the constitutional mode
would be by an amendment to the constitution. If it should be conceded
then that the admission of this territory into the Union, as a State, was
in the contemplation of the contracting parties, it must be understood
with a reservation of the right of this Congress or of the States to do
it, or not; the words “admitted as soon as possible,” must refer to the
voluntary admission in one of the two modes that I have mentioned; for in
no other way can a State be admitted into this Union.
The question was then taken on the passage of the bill, and carried in
the affirmative--yeas 26, nays 5, as follows:
YEAS--Messrs. Adams, Anderson, Bailey, Baldwin, Bradley, Breckenridge,
Brown, Butler, Cocke, Condit, Dayton, Ellery, Franklin, Jackson, Logan,
Maclay, Nicholas, Olcott, Plumer, Potter, Israel Smith, John Smith,
Stone, Taylor, Worthington, and Wright.
NAYS--Messrs. Hillhouse, Pickering, Tracy, Wells, and White.
FRIDAY, November 4.
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
By the copy now communicated of a letter from Captain
Bainbridge, of the Philadelphia frigate, to our Consul at
Gibraltar, you will learn that an act of hostility has been
committed on a merchant vessel of the United States, by an
armed ship of the Emperor of Morocco. This conduct on the part
of that power is without cause and without explanation. It is
fortunate that Captain Bainbridge fell in with and took the
capturing vessel and her prize; and I have the satisfaction
to inform you that about the date of this transaction, such a
force would be arriving in the neighborhood of Gibraltar, both
from the east and from the west, as leaves less to be feared
for our commerce, from the suddenness of the aggression.
On the 4th of September, the Constitution frigate, Captain
Preble, with Mr. Lear on board, was within two days’ sail of
Gibraltar, where the Philadelphia would then be arrived with
her prize; and such explanations would probably be instituted
as the state of things required, and as might perhaps arrest
the progress of hostilities.
In the mean while, it is for Congress to consider the
provisional authorities which may be necessary to restrain the
depredations of this power, should they be continued.
TH. JEFFERSON.
NOV. 4, 1803.
The Message and papers therein referred to were read and ordered to lie
for consideration.
THURSDAY, November 10.
The credentials of JOHN CONDIT, appointed a Senator by the Legislature of
the State of New Jersey, for the time limited in the Constitution of the
United States, were presented and read.
_Ordered_, That they lie on file.
FRIDAY, November 11.
The PRESIDENT communicated a letter from De Witt Clinton, late a Senator
from the State of New York, stating that he had resigned his seat in the
Senate.
MONDAY, November 14.
The PRESIDENT administered the oath required by law to Mr. CONDIT, a
Senator from the State of New Jersey.
TUESDAY, November 15.
Mr. WORTHINGTON presented the petition of a number of the inhabitants of
the Indiana Territory, praying to be set off into a separate district,
for reasons therein stated.
_Ordered_, That it be referred to Mr. BRADLEY and others, the committee
to whom were referred on the 7th instant, petitions on the same subject,
to consider and report thereon to the Senate.
WEDNESDAY, November 23.
_Amendment to the Constitution._
The Senate resumed the consideration of the report of the committee to
whom was referred the motion for an amendment to the constitution in
the mode of electing the President and the Vice President of the United
States; whereupon, the President _pro tem._ (Mr. BROWN) submitted to the
consideration of the Senate the following question of order:
“When an amendment to be proposed to the constitution is
under consideration, shall the concurrence of two-thirds of
the members present be requisite to decide any question for
amendments, or extending to the merits, being short of the
final question?”
[A debate took place on this proposition, tedious, intricate, and
desultory, which it was very difficult to follow, and often to
comprehend.]
The proposition offered by the President was then called up for decision,
whether two-thirds were necessary--ayes 13, noes 18.
Mr. BUTLER desired to know from the President if the question now decided
did not require a majority of two-thirds?
The PRESIDENT said, according to the rule of the House, the question
required only a principal majority to decide.
Mr. DAYTON’s motion for striking out what related to the Vice President
was called for, and the question taken on striking out--ayes 12, noes 19.
The report of the committee at large being then under consideration,
Mr. NICHOLAS moved to strike out all following the seventh line of the
report, to the end, for the purpose of inserting the following:
“In all future elections of President and Vice President,
the Electors shall name in their ballots the person voted
for as President, and, in distinct ballots, the person voted
for as Vice President, of whom one at least shall not be an
inhabitant of the same State with themselves. The person voted
for as President, having a majority of the votes of all the
Electors appointed, shall be the President; and if no person
have such majority, then from the three highest on the list
of those voted for as President, the House of Representatives
shall choose the President in the manner directed by the
constitution. The person having the greatest number of votes
as Vice President, shall be the Vice President; and in case
of an equal number of votes for two or more persons for Vice
President, they being the highest on the list, the Senate shall
choose the Vice President from those having such equal number,
in the manner directed by the constitution; but no person
constitutionally ineligible to the office of President, shall
be eligible to that of Vice President of the United States.”
Mr. ADAMS objected to the number “three” instead of five, and wished five
to be restored, as the House of Representatives had already agreed to it.
He asked for a division of the question; which was not agreed to.
Upon the question for striking out being put, it was carried without
a dissenting voice, and the amendment of Mr. NICHOLAS adopted in the
report, leaving the number blank.
Mr. DAYTON moved to fill up the blank with the number five; upon the
question being put, it was lost--only eleven rose in the affirmative.
Mr. ANDERSON moved to strike out the word “two” in the nineteenth
line--ayes 6. Lost.
Mr. S. SMITH then moved to fill the blank with the word “three;” which
was carried--ayes 18, noes 13.
Mr. ADAMS suggested an objection to the amendment as it stood, which
appeared to arise out of the treaty of cession of Louisiana. His
original idea was adverse to the limitation to natural-born citizens,
as superfluous; but, as it stood, the terms upon which Louisiana was
acquired had rendered a change necessary, for it appeared to him that
there was no alternative, but to admit those born in Louisiana as well
as those born in the United States to the right of being chosen for
President and Vice President.
Mr. BUTLER said that, if there was a numerous portion of those who were
already citizens of the United States who can never aspire to, nor be
eligible for, those situations under the constitution, he did not see
how this supposed alternative could be upheld. The people of Louisiana,
under the treaty and under the constitution, will clearly come under the
description of naturalized citizens. While he was up, he would take the
opportunity of speaking to the question at large, and to examine the
motives which produced this amendment; the principal cause of solicitude,
on this subject, he understood to be the base intrigues which were said
to have been carried on at the Presidential election.
Mr. WRIGHT called to order; and a short altercation on the point of order
took place.
Mr. BUTLER proceeded. He had on a former day asked if he might, in this
stage of the discussion, take a view of the whole subject; the House
had decided in the affirmative. When the proposition was first laid
before the House, he had felt a disposition in favor of it; his mind had
been shocked by those base intrigues, which had taken place at the late
Presidential election, and he was hurried by indignation into a temper
which a little cool reflection and some observation on a particular
mode of action in that House, had checked and corrected, and finally
convinced him that much caution was required in a proceeding of that
nature, and that, in all human probability, such a scene of intrigue may
never occur again; that it became questionable whether any steps whatever
were necessary. Upon a careful review of the subject, it appeared to him
that an alteration might make matters worse; for though at present there
has been afforded, by a course of accidents and oversights, room for
intrigue, it would be preferable to leave it to the care and discretion
of the States at large to prevent the recurrence of the danger, than
put into the hands of four of the large States the perpetual choice
of President, to the exclusion of the other thirteen States. It was a
reasonable principle that every State should, in turn, have the choice
of the Chief Magistrate made from among its citizens. The jealousy
of the small States was natural; and he would not tire the House by
bringing to their ears arguments from the history of Greece, because the
subject must be familiar to every member of that House, and, indeed, to
every school-boy. He would not weary them with the painful history of
the conflicts of Athens and Sparta, for the supremacy of Greece, and
the fatal effects of their quarrels and ambition on the smaller States
of that inveterate confederacy of Republics. Their history is that of
all nations in similar circumstances; for man is man in every clime,
and passion mingles in all his actions. If the smaller States were to
agree to this amendment, it would fix for ever the combination of the
larger States, and they would not only choose the President but the Vice
President also in spite of the smaller States. It would ill become him
who had been a member of that convention which had the honor of forming
the present constitution to let a measure such as the present pass
without the most deliberate investigation of its effects. Before the
present constitution was adopted all the States held an equal vote on all
national questions; by the constitution their sovereignty was guarantied,
and the instrument of guarantee and right, he had subscribed his name
to as a Representative from South Carolina, and had used all the zeal
and influence of which he was possessed to promote its adoption. To give
his assent to any violation of it, or any unnecessary innovation on its
principles, would be a deviation from morality.
The question was immediately taken on the report and carried--yeas 20,
nays 11.
Mr. ADAMS said, that though he had voted for the amendment, he
disapproved of the alteration from five to three. He felt, however,
though a representative of a large State, a deep interest in this
question. Was there no champion of the small States to stand up in that
House and vindicate their rights?
Mr. DAYTON was not here as champion of the small States; but, as the
representative of one of them, he was ready to enter his protest against
being delivered over bound hand and foot to four or five of the large
States. The gentleman from South Carolina had offered arguments on the
subject irrefutable. The little portion of influence left us he has
demonstrated to be now about to be taken away, and the gentleman from
Massachusetts, (Mr. ADAMS,) after aiding the effort with his vote, has
taken mercy upon us, and after he has helped to knock us down, asks us
why we do not stand up for ourselves.
Mr. S. SMITH was not surprised to find those who were members of the old
Congress, in which the subject of large and small States was frequently
agitated, familiar with the subject of those days. Under the present
constitution he had been ten years in Congress and had never heard the
subject agitated, nor the least ground given for any apprehension on this
subject; he had seen the small States possess all the advantages secured
to them without even a moment’s jealousy. The State he represented was
once considered a large State; the increase of others in population,
however, had rendered it properly belonging to neither class; it was
an intermediate State; but from the natural progression of the Union
it must be ranked among the small States. In this view then he could
speak dispassionately, and the small States could not with reason be
apprehensive that a State, which must speedily take rank among them,
could be indifferent to their rights if there were the least cause for
apprehension.
He had moved for the insertion of three instead of five, with this
precise and special intention, that the people themselves should have the
power of electing the President and Vice President; and that intrigues
should be thereby for ever frustrated. The intention of the convention
was that the election of the chief officers of the Government should
come as immediately from the people as was practicable, and that the
Legislature should possess the power only in such an exigency as accident
might give birth to, but which they had considered as likely to occur.
Had it not been for these considerations, the large States never would
have given up the advantages which they held in point of numbers. If the
number five were to be continued, and the House of Representatives made
the last resort, he would undertake to say, that four times out of five
the choice would devolve upon them.
Mr. HILLHOUSE.--In avoiding rocks he feared we were steering for
quicksands. The evils that are past we know; those that may arrive
we know not. The object proposed is to provide against a storm, a
phenomenon not rare or unfrequent in republics. You are called upon
to act upon a calculation that all the States in the Union will vote
for the same persons, or that each of two parties opposed in politics
will have an individual candidate. Suppose the two candidates who had
the highest votes on the late election had been the champions of two
opposite parties, and that neither would recede, what then would be the
consequence; according to the gentleman from Maryland, a civil war!
When men are bent on a favorite pursuit, they are too apt to shut out
all consequences which do not bear out their object. Thus gentlemen
can very well discover the danger they have escaped, but they do not
perceive that the opposition of two powerful candidates gives, besides
the hazard of civil war, the hazard of placing one of them on a permanent
throne. The First Magistracy of this nation is an object capable of
exciting ambition; and no doubt it would one day or other be sought
after by dangerous and enterprising men. It was to place a check upon
this ambition that the constitution provided a competitor for the Chief
Magistrate, and declared that both should not be chosen from the same
State. Here also was a guard against State pride, and this guard you wish
to take away; and what will be the consequence? Instead of two or three
or five, you will have as many candidates as there are States in the
Union. By voting for two persons without designation, the States stood a
double chance of a majority, besides the chance of a majority of all the
States in the House of Representatives. For once or twice there may be
such an organization of party as will secure for a conspicuous character
the majority of votes. But that character cannot live always. The evil
of the last election will recur, and be greater, because the whole field
will be to range in.
He hoped this amendment would not be hastily adopted. The subsisting mode
was the result of much deliberation and solemn compromise, after having
long agitated the convention. It is now attacked by party, whatever
gentlemen may say to the contrary; the gentleman from South Carolina has
confessed it. If gentlemen will suffer themselves to look forward without
passion, great good may come from the present mode; men of each of the
parties may hold the two principal offices of the Government; they will
be checks upon each other; our Government is composed of checks; and let
us preserve it from party spirit, which has been tyrannical in all ages.
These checks take off the fiery edge of persecution. Would not one of a
different party placed in that chair tend to check and preserve in temper
the overheated zeal of party? he would conduct himself with firmness
because of the minor party; he would take care that the majority should
have justice, but he would also guard the minority from oppression. If
we cannot destroy party we ought to place every check upon it. If the
present amendment pass, nine out of ten times the election will go to
the other House, and then the only difference will be that you had a
comedy the last time, and you’ll have a tragedy the next. Though it
was impossible to prevent party altogether, much more when population
and luxury increase, and corruption and vice with them, it was prudent
to preserve as many checks against it as was practicable. He had been
long in Congress and saw the conflicting interests of large and small
States operate; the time may not be remote when party will adopt new
designations; federal and republican parties have had their day, their
designations will not last long, and the ground of difference between
parties will not be the same that it has been; new names and new views
will be taken; it has been the course in all nations. There has not yet
been a rotation of offices in which the small States could look for their
share, but the time may, it will come when the small will wrestle with
the large States for their rights. Each State has felt that though its
limits were not so extensive as others, its rights were not disregarded.
Suffer this confidence to be done away, and you may bid adieu to it;
three or four large States will take upon them in rotation to nominate
the Executive, and the second officer also. This will be felt. A fanciful
difference in politics is the bugbear of party now, because no other, no
real cause of difference has subsisted. But remedy will create a real
disease. States like individuals may say we will be of no party, and
whenever this shall happen blood will follow.
Mr. BRADLEY moved an adjournment. The motion was agreed to.
THURSDAY, November 24.
_Amendment to the Constitution._
The consideration of the report on the amendment to the constitution
being taken up, the amendment as directed to be printed on the preceding
day, was taken up, and read, as follows:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds
of both Houses concurring_, That the following amendment be
proposed to the Legislatures of the several States as an
amendment to the constitution of the United States, which,
when ratified by three-fourths of the said Legislatures, shall
be valid to all intents and purposes, as a part of the said
constitution, viz:
In all future elections of President and Vice President, the
Electors shall name in their ballots the person voted for
as President, and, in distinct ballots, the person voted
for as Vice President, of whom one at least shall not be an
inhabitant of the same State with themselves. The person voted
for as President having a majority of the votes of all the
Electors appointed, shall be the President, and if no person
have such majority, then from the three highest on the list
of those voted for as President, the House of Representatives
shall choose the President in the manner directed by the
constitution. The person having the greatest number of votes
as Vice President, shall be Vice President; and in case of an
equal number of votes for two or more persons for the Vice
President, they being the highest on the list, the Senate shall
choose the Vice President from those having such equal number,
in the manner directed by the constitution; but no person
constitutionally ineligible to the office of President, shall
be eligible to that of the President of the United States.
Mr. BRADLEY did not approve of the amendment as it now stood; he could
not see why the Vice President should not be chosen by a majority,
as well as the President. He considered the possibility of the Vice
President becoming President by any casualty, as a good reason for both
being chosen by the same ratio of numbers. If it should be carried as the
amendment now stands, the office of Vice President would be hawked about
at market, and given as change for votes for the Presidency. And what
would be the effect?--that it might so happen that a citizen chosen only
for the office of Vice President, might by the death of the President,
though chosen only by a plurality, become President, and hold the office
for three years eleven months and thirty days. He did not approve of
many arguments which he had heard on the preceding day, and however
disposed to concur in the principle of designation for the two offices,
he could not give it his vote in the present shape. He would, in order to
render the report more congenial with his wishes, move to strike out the
following words beginning with the words _shall_, in the thirteenth line,
to _constitution_, in the eighteenth. The motion was seconded.
Mr. TRACY opposed the striking out, as not in order, it being an
amendment to an amendment already received by the House. He thought,
however, it would be in order to reconcile the whole, and then any part
might be amended.
The PRESIDENT said that the motion for amending the amendment was not
in order; but if the member from Vermont, or any other gentleman of the
majority on the question yesterday chose to move for a recommittal, or
even to refer the report to a select committee, it would be in order.
Mr. BRADLEY then renewed his motion as before, for striking out and
inserting after the 13th line; this amendment he thought of great
importance, as under the constitution as it now stands the Vice
President must be a person of the highest respectability, well known,
and of established reputation throughout the United States; but if the
discriminating principle prevails without some precautions such as the
amendment proposed, that assurance would be lost; and he should not be
surprised to hear of as many candidates for Vice President as there are
States, as the votes for President would be offered in truck for votes
for Vice President, and an enterprising character might employ his
emissaries through all the States to purchase them, and your amendment
lays the foundation for intrigues. He was desirous that he who is to
be set up as candidate for the Vice President should as at present be
equally respectable, or that there should be none--that at least he
should be the second man in the nation; adopt the designating principle,
without the most guarded precautions, and you lose that assurance.
Mr. HILLHOUSE accorded with the gentleman’s amendment, as it naturally
grows out of the principles of the report. There was not a word in the
constitution about voting for the Vice President, no vote in fact is
given for such an office; the alteration to designation alters the whole
thing; and as the gentleman has expressed, will send the Vice President’s
office into market to be handed about as change for the candidate
supported by larger States; he would prefer leaving the choice of
President and Vice President at once to the larger States than take it
in this way. In calm times any government may work well, but he wished in
calm times to provide against storm. If we designate any, then designate
both and on equal terms.
Mr. JACKSON said, that though coming from a small State he had not been
instructed, and was therefore at perfect liberty to act according to the
best of his judgment; though his State was now, in regard to population,
small, and though it were to remain so, he could have but one opinion on
this subject. He saw abundance of reason for preferring three to five.
The constitution under the present form has directed the choice to be
made from five. But the reason of this was consistent with the result to
be produced; the electors were to vote for two persons indiscriminately,
but with the restriction of voting for one only belonging to the State
where the vote was given. The voting for two would necessarily bring
forward four candidates, and a fifth possibly, for we saw in the two
elections before the last that there was one more than the four, though
in each case the fifth had but one vote; he alluded to the vote for Mr.
Jay. In the amendment proposed you are called upon to designate for each
office, and there can be little apprehension of having more than two
or three principal candidates; and for twenty years to come he had no
apprehension of a greater number of candidates if this amendment prevails.
Mr. WRIGHT.--We need not be told in this house, that the constitution was
the result of a compromise, or that care was taken to guard the rights of
each State; these things we must be very ignorant, indeed, not to know.
But does it therefore follow that it is not susceptible of amendment
or correction under experience? Does it follow, because, for mutual
interest and security, this compromise was made, that we are precluded
from effecting any greater good? No man would accuse him of a wish to
see the interest of any State impaired. But we can preserve the spirit
and intention of the constitution in full vigor, without impairing any
interests. And this is to be done, by the discriminating principle; it
fulfills the intention, and it forefends the recurrence of that danger
from which you have once escaped. By this principle, each elector may
name his man for each office, and this can be done whether the number be
three or five. For the latter number he was disposed; because already
adopted by the other House, and he did not wish to delay its progress.
If we were to form a constitution, he would provide that there should be
only two candidates presented to the House. But he did not rely on any
number so much as on the discriminating principle.
Mr. NICHOLAS.--Several gentlemen profess much reluctance to make any
change in the constitution; he would make no such profession; and though
he should be as jealous of improper alterations, or the introduction
of principles incompatible with Republican Government, he would not
hesitate to make any alteration calculated to promote, or secure the
public liberty upon a firmer basis; nay, if it could be made better he
would expunge the whole book. Gentlemen who are for adhering so closely
to the constitution, appear not to consider that a choice of President
from the number three, is more in the spirit of the constitution than
from five; and preserves the relation that the election of two persons,
under the present form, holds to the number five. A reason equally
forcible with him was, that, by taking the number three instead of five,
you place the choice with more certainty in the people at large, and
render the choice more consonant to their wishes. With him, also, it was
a most powerful reason for preferring three, that it would render the
Chief Magistrate dependent only on the people at large, and independent
of any party or any State interest. The people held the sovereign power,
and it was intended by the constitution that they should have the
election of the Chief Magistrate. It was never contemplated as a case
likely to occur, but in an extreme case, that the election should go to
the House of Representatives. What, he asked, would have been the effect,
had Mr. Jay been elected when he had only one vote? What, he would ask,
would be the impression made upon our own people, and upon foreign
nations, had Mr. Aaron Burr been chosen at the last election, when the
universal sentiment was to place the present Chief Magistrate in that
station? He did not mean any thing disrespectful or invidious towards
the Vice President, he barely stated the fact, so well known, and asked,
what would be the effect? Where would be the bond of attachment to that
constitution which could admit of an investiture in a case so important,
in known opposition to the wishes of the people? The effect would be
fatal to the constitution itself; it would weaken public attachment to
it, and the affectation, if alone for the small States, would not have
been heard of in the deep murmur of discontent.
An adjournment was now called for and carried.
TUESDAY, November 29.
_Amendment to the Constitution._
The order of the day being called up on the amendments to the
constitution, a considerable time elapsed, when
Mr. DAYTON rose and said, that since no other gentleman thought proper to
address the Chair, although laboring himself under a very severe cold,
which rendered speaking painful, he could not suffer the question to pass
without an effort to arrest it in its progress; and should consider his
last breath well expended in endeavoring to prevent the degradation which
the State he represented would suffer if the amendment were to prevail.
As to the question immediately before the Senate for filling the blank
with five, he felt himself indebted to the member from Tennessee for
renewing the subject. He was grateful, also, to the member from Maryland
(Mr. WRIGHT) for declaring he would support it, as well as for giving the
assurance that he was disposed to consider and spare the interests of the
small States as far as possible, consistently with the great object of
discrimination.
Every member who had spoken on this subject seemed to have admitted, by
the very course and pointing of their arguments, even though they may
have denied it in words, that this was really a question between great
and small States, and disguise it as they would, the question would be
so considered out of doors. The privilege given by the constitution
extended to five, out of which the choice of President should be made;
and why should the smaller, for whose benefit and security that number
was given, now wantonly throw it away without an equivalent? As to the
Vice President, his election had no influence upon the number, because
the choice of President in the House of Representatives was as free and
unqualified as if that subordinate office did not exist. Nay, he said,
he would venture to assert that, even if the number five were continued,
and the Vice Presidency entirely abolished, there would not be as great a
latitude of choice as under the present mode, because those five out of
whom the choice must eventually be made, were much more likely hereafter
to be nominated by the great States, inasmuch as their electors would no
longer be compelled to vote for a man of a different State. The honorable
gentleman from Maryland (Mr. SMITH) has said, he was not surprised that
those who had seats in the old Congress, should perplex themselves with
the distinctions; but he could tell that gentleman, that it was not in
the old Congress he had learnt them, for there he had seen all the votes
of the States equal, and had known the comparatively little State of
Maryland controlling the will of the _Ancient Dominion_. It was in the
Federal Convention that distinction was made and acknowledged; and he
defied that member to do, what had been before requested of the honorable
gentleman of Virginia, viz: to open the constitution, and point out a
single article, if he could, that had not evidently been framed upon a
presumption of diversity (he had almost said, adversity) of interest
between the great and small States.
Mr. ADAMS in a former debate had stated that he had not a wish to avoid
or seek for the yeas and nays on any question; on the present occasion,
however, he would, when the question was taken, call for the yeas and
nays. But his own vote on the final question would be governed by the
decision of the number five, and he wished to have some record of his
vote, that he might be hereafter able to defend himself against any
charge of inconsistency. On the principle of the amendment he had formed
his opinion, and he was free to confess, that notwithstanding the many
able productions which he had seen against it, he thought it calculated
to produce more good than evil. He was not, however, influenced in this
opinion by the instructions which had been read in a preceding debate
from a former Legislature of Massachusetts to their Senators; he presumed
these were not read by way of intimidation. To the instructions of those
to whom he owed his seat in that House he would pay every respect that
was due, but he did not think that the resolutions of a Legislature
passed in March 1799 or 1800 ought to have the same weight. Since that
time four total and complete changes had taken place, and probably not
one third of those who gave those instructions now remained. He held a
seat in the Legislature himself three years since, but did not perceive
any particular anxiety on the subject, and he did not think that the
present Legislature would be extremely offended if he were to give a
direct vote against what was recommended four years ago.
The constitution was a combination of federative and popular principles.
When you argue upon, or wish to change any of its federative principles,
you must use analogies as arguments; popular arguments will not apply
to federative principles. The House of Representatives was founded on
popular principles; in this House the representation is federative,
and not popular; it is in its nature aristocratic. The foundation of
all popular representation is equality of votes; but even the ratio
of representation is different in different States; the numbers in
Massachusetts and Virginia, in Vermont and Delaware, are different in
their proportions; but still an equality of representation is preserved,
and the only difference is in the details. But if you argue upon the
principles of the Senate, this equality of popular representation, or by
an equal or relatively equal number, will not apply; you must discuss it
upon another species of equality, of sovereignties, and the independence
of several States federatively connected. Applying principles then to the
election of President, if you reduce the number from which the House of
Representatives is authorized to choose, do you not attack the principles
of the federal compact, rather than the rights of the small States?
The Executive, it had been said, is the man of the people; true, and
he is also, as was said, though upon different grounds, the man of the
Legislature--it was here a combined principle, federative and popular.
Virginia had in that House twenty-two popular representatives, in this
she has two federative; Delaware has one popular and two federative
representatives. And even in the operation of election in the popular
branch of Congress, the federative principle is pursued, and the State
which has only one popular representative has an equal voice in that
instance with the State that has twenty-two popular representatives. It
was therefore evident that the attempt to alter the number from five to
three, is an attack upon the federative principle, and not upon the small
States.
Mr. S. SMITH, when he made the motion for filling up the blank with
three, did it after the most deliberate consideration of the theory and
the principles of the constitution; which, if he understood it right,
intended that the election of the Executive should be in the people, or
as nearly as was possible, consistent with public order and security to
the right of suffrage. The provision admitting the choice by the House
of Representatives, was itself intended only for an extreme case, where
great inconvenience might result from sending a defective election back
to the people, as is customary in Massachusetts, where, if the majority
is deficient, a new election is required. Our object in the amendment
is or should be to make the election more certain by the people. This
was to be done most effectually by leaving it to them to designate the
persons whom they preferred for each office. As under the present form
there was an extreme case, so there might be when the change of number
should take place; for, although even with the number three, there was
a possibility of the choice devolving on the House of Representatives,
yet the adoption of the designating principle and the number three,
would render the case less probable. It never was the intention of the
framers of the constitution that the election should go to the House of
Representatives but in the extreme case; nor was it ever contemplated
that about one-fifth of the people should choose a President for the
rest, which certainly would be the case if what some gentlemen contended
for were to take place. When gentlemen contend for such a power as
would transfer the choice from the people, and place it in the hands
of a minority so small, how happens it that gentlemen will not bear to
hear of the efforts which such arguments or such measures would produce
on the larger States? It was not the interest of the small States to
combine against the large. Suppose it were possible that the four large
States should combine--and a combination of the small States alone could
produce such an effect--nine States in the Union have but thirty-two
votes out of one hundred and forty-two, yet nine States, with one vote
each, make a majority of seventeen, though in relation to population they
contain only about one-fifth of the whole; and by such a proceeding the
one-fifth might choose a President and Vice President in defiance of the
other four-fifths. What would be the consequence of such an election?
At a subsequent election the large States would combine, and by the use
of their votes they would frustrate every object which the small States
might use their efforts to accomplish.
Notwithstanding what had been said concerning the jealousy of States, he
could see nothing in it but the leaven of the old Congress, thrown in to
work up feelings that had been long still. It was the forlorn hope, the
last stratagem of party; and he was the more disposed to think so, when
he saw gentlemen from the large States coming forward as the champions of
the small--this might, to be sure, be magnanimity; but if his discernment
did not deceive him, it was a stratagem to divide the friends of the
amendment. Why was not the same jealousy entertained of the power of
thirteen out of seventeen combining and giving absolute law to the other
four? Why have gentlemen paid no regard to the experience which they
have had from the last election, when less than one third of the members
harassed the public mind, kept the Union in agitation, and Congress
engrossed to the exclusion of nearly all other business for two weeks?
Suppose that the House had been as accessible to corruption as the diets
of other nations have been, and that three men, having in their power
the votes of three States, had been seized upon, and the election made
contrary to the wishes of the people. What would be the effect--on the
minds of the people--on the administration of the Government--and on the
attachment which the people feel for the constitution itself? He need not
attempt to describe the effects. But it is our duty to prevent the return
of such dangers, by keeping the election out of that House. And the most
effectual mode is to fix the selection from the number three.
Mr. PICKERING had not intended to have spoken on this question so far
as it concerned the numbers; but as he should probably vote differently
from his colleague, he conceived it proper to give his motives for his
vote. His wishes for the entire preservation of the constitution were so
strong, that he regretted any change was contemplated to be made in it,
and he wished if an alteration was made to keep as near as possible to
the spirit of the constitution as it now is, and it appeared to him that
the number _three_ conformed more to that spirit than the number _five_.
He believed it to be the intention of the constitution, that the people
should _elect_. As to what gentlemen said concerning the will of the
people, he paid but little regard to it. The will of the people! he did
not know how the will of the people could be known--how gentlemen came by
it; it would not be asserted that it was to be found in the newspapers,
or in private society; in truth he believed it never had been fairly
expressed on the subject. We have seen an amendment brought forward from
New York, but was that an expression of the public opinion? if it was,
it was a very remarkable one, for it contained an absurdity--visible to
every one. He wished to avoid innovations on the constitution, and to
preserve the combined operation of federative and popular principles upon
which it rested unimpaired.
Mr. WORTHINGTON hoped the number three would be adopted in preference to
five. Nevertheless he approved so much of the principle of designation in
the election of the President and Vice President, that rather than lose
it he would vote for it with either number.
The yeas and nays being called for on filling up the blank with the
largest number according to order; the votes were--yeas 12, nays 19, as
follows:
YEAS.--Messrs. Adams, Bailey, Butler, Condit, Dayton,
Hillhouse, Olcott, Plumer, Tracy, Wells, White, and Wright.
NAYS.--Messrs. Baldwin, Bradley, Breckenridge, Brown, Cocke,
Ellery, Franklin, Jackson, Logan, Maclay, Nicholas, Pickering,
Potter, Israel Smith, John Smith, Samuel Smith, Stone, Taylor,
and Worthington.
The question on the number three being inserted was then put, and the
yeas and nays being demanded by one fifth of the members present; they
were, yeas 21, nays 10, as follows:
YEAS.--Messrs. Bailey, Baldwin, Bradley, Breckenridge, Brown,
Cocke, Ellery, Franklin, Jackson, Logan, Maclay, Nicholas,
Pickering, Potter, Israel Smith, John Smith, Samuel Smith,
Stone, Taylor, Worthington, and Wright.
NAYS.--Messrs. Adams, Butler, Condit, Dayton, Hillhouse,
Olcott, Plumer, Tracy, Wells, and White.
The House then adjourned.
FRIDAY, December 2.
Mr. WHITE, of Delaware, rose and addressed the chair as follows:
Mr. President: It may be expected that we, who oppose the present
measure, and especially those of us who belong to the smaller States,
and who think the interests of those States will be most injuriously
affected by its adoption, shall assign some reasons for our opinion, and
for the resistance we give it: I will for myself endeavor to do so. I
know well the prejudices of many in favor of this proposed amendment to
the constitution; I know too, and acknowledge with pleasure, the weight
of abilities on the other side of the House by which those prejudices, if
I may so be permitted to call them, will be sustained; this might perhaps
be sufficient to create embarrassment or even silence on my part, but
for the consciousness I feel in the rectitude of my views, and my full
reliance on the talents of those with whom I have the honor generally to
think and act. Upon a subject of the nature and importance of the one
before us a great diversity of sentiment must be expected, and is perhaps
necessary to the due and proper investigation of it. Without detaining
the Senate with further preliminary remarks, presuming upon that
patience and polite indulgence that are at all times extended by this
honorable body to gentlemen who claim their attention, I will proceed
immediately to the subject of the resolution; barely premising that
notwithstanding the opinions of the gentleman from Virginia (Mr. TAYLOR)
and the gentleman from Georgia, (Mr. JACKSON,) whose opinions I highly
respect, I must yet think with my honorable friend from New Jersey (Mr.
DAYTON) that the Constitution of the United States bears upon the face
of it the strongest marks of its having been made under the influence of
State classifications. It was a work of compromise, though not formed,
as stated by the gentleman from Virginia, by the large States yielding
most, but by the smaller States yielding much more to the general good.
It will be recollected that, previous to the adoption of the
constitution, on all legislative subjects, in fact, on every measure of
the constitution, each State had an equal voice; but very different is
the case now, when, in the popular branch of your Government, you see
one State represented by twenty-two members, and another by but one,
voting according to numbers. So that, notwithstanding the ideas of those
gentlemen, and the declaration of an honorable member from Maryland, on
my right, (Mr. SMITH,) that, during his ten years’ service in Congress,
he had never seen anything like State jealousies, State divisions,
or State classification, I must be permitted to predicate part of my
argument upon this business. Should any gentleman be able to show that
the foundation is unsound, the superstructure of course will be easily
demolished. Admitting, then, sir, for the sake of argument, that there
were no very great objections to this proposed alteration in the mode of
electing a President and Vice President, and that it were now part of the
constitution, it might be unwise to strike it out, unless much stronger
arguments had been urged against than I have heard in favor of it; yet I
would not now vote for its adoption.
The United States are now divided, and will probably continue so,
into two great political parties; whenever, under this amendment, a
Presidential election shall come round, and the four rival candidates
be proposed, two of them only will be voted for as President--one of
these two must be the man; the chances in favor of each will be equal.
Will not this increased probability of success afford more than double
the inducement to those candidates, and their friends, to tamper with
the Electors, to exercise intrigue, bribery, and corruption, as in an
election upon the present plan, where the whole four would be voted for
alike, where the chances against each are as three to one, and it is
totally uncertain which of the gentlemen may succeed to the high office?
And there must, indeed, be a great scarcity of character in the United
States, when, in so extensive and populous a country, four citizens
cannot be found, either of them worthy even of the Chief Magistracy
of the nation. But, Mr. President, I have never yet seen the great
inconvenience that has been so much clamored about, and that will be
provided against in future by substituting this amendment. There was,
indeed, a time when it became necessary for the House of Representatives
to elect, by ballot, a President of the United States from the two
highest in vote, and they were engaged here some days, as I have been
told, in a very good-humored way, in the exercise of that constitutional
right. They at length decided; and what was the consequence? The people
were satisfied, and here the thing ended. What does this prove? that the
constitution is defective? No, sir, but rather the wisdom and efficiency
of the very provision intended to be stricken out, and that the people
are acquainted with the nature of their Government; and give me leave
to say, if fortune had smiled upon another man, and that election had
eventuated in another way, the consequence would have been precisely
the same; the great mass of the people would have been content and
quiet; and those factious, restless disorganizers, that are the eternal
disturbers of all well administered Governments, and who then talked of
resistance, would have had too much prudence to hazard their necks in
so dangerous an enterprise. I will not undertake to say that there was
no danger apprehended on that occasion. I know many of the friends of
the constitution had their fears; the experiment however proved them
groundless; but what was the danger apprehended pending the election
in the House of Representatives? Was it that they might choose Colonel
Burr or Mr. Jefferson President? Not at all; they had, notwithstanding
what had been said on this subject by the gentleman from Maryland, (Mr.
WRIGHT,) a clear constitutional right to choose either of them, as much
so as the Electors in the several States had to vote for them in the
first instance; the particular man was a consideration of but secondary
importance to the country; the only ground of alarm was, lest the House
should separate without making any choice, and the Government be without
a head, the consequences of which no man could well calculate.
It has of late, Mr. President, become fashionable to attach very little
importance to the office of Vice President, to consider it a matter but
of small consequence who the man may be; to view his post merely as an
idle post of honor, and the incumbent as a cipher in the Government; or
according to the idea expressed by an honorable member from Georgia, (Mr.
JACKSON,) quoting, I believe, the language of some Eastern politician,
as a fifth wheel to a coach; but in my humble opinion this doctrine is
both incorrect and dangerous. The Vice President is not only the second
officer of Government in point of rank, but of importance, and should be
a man possessing and worthy of the confidence of the nation. I grant,
sir, should this designating mode of election succeed, it will go very
far to destroy, not the certain or contingent duties of the office,
for the latter by this resolution are considerably extended, but what
may be much more dangerous, the personal consequence and worth of the
officer; by rendering the Electors more indifferent about the reputation
and qualification of the candidate, seeing they vote for him but as a
secondary character; and which may occasion this high and important
trust to be deposited in very unsafe hands. By a provision in the first
section of the second article of the constitution, “in case of the
removal of the President from office, or of his death, resignation or
inability to discharge the powers and duties of the said office, the
same shall devolve on the Vice President”--and he is constitutionally
the President, not until another can be made only, but of the residue
of the term, which may be nearly four years; and this is not to be
supposed a remote or improbable case. In the State to which I have the
honor to belong, within a few years past, two instances have happened
of the place of Governor becoming vacant, and the duties of the office,
according to the constitution of that State, devolving upon the Speaker
of the Senate. We know well too, generally speaking, that before any man
can acquire a sufficient share of the public confidence to be elected
President, the people must have long been acquainted with his character
and his merit; he must have proved himself a good and faithful servant,
and will of course be far advanced in years, when the chances of life
will be much against him. It may indeed, owing to popular infatuation,
or some other extraordinary causes, be the ill fate of our country, that
an unworthy designing man, grown old and gray in the ways of vice and
hypocrisy, shall for a time dishonor the Presidential chair, or it may
be the fortune of some young man to be elected, but those will rarely
happen. The convention in constructing this part of the constitution, in
settling the first and second offices of the Government, and pointing
out the mode of filling, aware of the probability of the Vice President
succeeding to the office of President, endeavored to attach as much
importance and respectability to his office as possible, by making it
uncertain at the time of voting, which of the persons voted for should
be President, and which Vice President; so as to secure the election of
the best men in the country, or at least those in whom the people reposed
the highest confidence, to the two offices--thus filling the office of
Vice President with one of our most distinguished citizens, who would
give respectability to the Government, and in case of the Presidency
becoming vacant, having at his post a man constitutionally entitled to
succeed, who had been honored with the second largest number of the
suffrages of the people for the same office, and who of consequence would
be probably worthy of the place, and competent to its duties. Let us now,
Mr. President, examine for a moment the certain effect of the change
about to be made, or what must be the operation of this designating
principle, if you introduce it into the constitution. Now the Elector
cannot designate, but must vote for two persons as President, leaving it
to circumstances not within his power to control which shall be the man:
of course he will select two characters, each suitable for that office,
and the second highest in vote must be the Vice President; but upon this
designating plan the public attention will be entirely engrossed in the
election of the President, in making one great man. The eyes of each
contending party will be fixed exclusively upon their candidate for this
first and highest office; no surrounding object can be viewed at the
same time, they will be lost in his disc. The office of President is, in
point of honor, profit, trust, and influential patronage, so infinitely
superior to any other place attainable in this Government, that, in the
pursuit and disposal of it, all minor considerations will be forgotten,
every thing will be made to bend, in order to subserve the ambitious
views of the candidates and their friends. In this angry conflict of
parties, amidst the heat and anxiety of this political warfare, the Vice
Presidency will either be left to chance, or what will be much worse,
prostituted to the basest purposes; character, talents, virtue, and
merit, will not be sought after in the candidate. The question will not
be asked, is he capable? is he honest? But can he by his name, by his
connections, by his wealth, by his local situation, by his influence
or his intrigues, best promote the election of a President? He will be
made a mere stepping-stone of ambition. Thus, by the death or other
constitutional inability of the President to do the duties of the office,
you may find at the head of your Government, as First Magistrate of the
nation, a man who has either smuggled or bought himself into office; who,
not having the confidence of the people, or feeling the constitutional
responsibility of his place, but attributing his elevation merely to
accident, and conscious of the superior claims of others, will be without
restraint upon his conduct, without that strong inducement to consult the
wishes of the people, and to pursue the true interests of the nation,
that the hope of popular applause, and the prospect of re-election, would
offer. Such a state of things might be productive of incalculable evils;
for it is, as I fear time will show, in the power of a President of the
United States to bring this Government into contempt, and this country to
disgrace, if not to ruin.
Mr. PLUMER said that he had generally contented himself with expressing
his opinion by a silent vote, but on a question which affected the rights
of the smaller States, (one of which he had the honor to represent,) he
requested the indulgence of the Senate to a few observations.
He said the constitution had provided only two methods for obtaining
amendments, and both are granted with great caution. If two-thirds of
the several State Legislatures apply, Congress shall call a convention
who are to propose amendments, which, when ratified by the conventions
of three-fourths of the States, will be valid. If this mode is adopted,
Congress have nothing to do but to ascertain the fact, whether the
necessary number of States require a convention. If they do, a convention
must be called. The State Legislatures are only to apply for a
convention. They can neither propose nor decide the amendments.
The other mode is, if two-thirds of both Houses of Congress deem
it necessary to propose amendments, and three-fourths of the State
Legislatures ratify them, they are valid. This is the present mode. The
State Legislatures have nothing to do till after Congress has proposed
the amendments, and then it is their exclusive province either to
ratify or reject them. But they have no authority to direct or even
request Congress to propose particular amendments for themselves to
ratify. Instructions on this subject are therefore improper. It is an
assumption of power, not the exercise of a right. It is an attempt to
create an undue influence over Congress. It is prejudging the question
before it is proposed by the only authority that has the constitutional
right to move it. If these instructions are obligatory, our votes must be
governed, not by the convictions of our own judgments, or the propriety
and fitness of the measure, but by the mandates of other Legislatures.
This would destroy one of the checks that the constitution has provided
against innovation. State Legislatures may, on some subjects, instruct
their Senators; but on this, their instructions ought not to influence,
much less bind us, to propose amendments, unless we ourselves deem them
necessary.
The Senate consists of two members from each State; and in this case, the
concurrence of two-thirds of all the Senate are necessary. A majority
of the Senate constitutes a quorum to do business, but that quorum is a
majority of all the Senators that all the States are entitled to elect.
This applies with equal force to the term “two-thirds of the Senate.”
But in cases where from necessity a speedy decision is requisite, and
where the concurrence of two-thirds is required, the constitution is
explicit in confining that two-thirds to the members present, as in cases
of treaties and impeachments; and also a fifth of the members present
requesting the yeas and nays. If amendments can be constitutionally
proposed by two-thirds of the Senate present, it will follow that twelve
Senators, when only a quorum is present, may propose them against the
will of twenty-two Senators.
This amendment affects the relative interest and importance of the
smaller States. The constitution requires the Electors of each State to
vote for two men, one of whom to be President of the United States. This
affords a degree of security to the small States against the views and
ambition of the large States. It gives them weight and influence in the
choice. By destroying this complex mode of choice, and introducing the
simple principle of designation, the large States can with more ease
elect their candidate. This amendment will enable the Electors from
four States and a half to choose a President, against the will of the
remaining twelve States and a half. Can such a change tend to conciliate
and strengthen the Union?
This amendment has a tendency to render the Vice President less
respectable. He will be voted for not as President of the United States,
but as President of the Senate, elected to preside over forms in this
House. In electing a subordinate officer the Electors will not require
those qualifications requisite for supreme command. The office of Vice
President will be a sinecure. It will be brought to market and exposed
to sale to procure votes for the President. Will the ambitious, aspiring
candidate for the Presidency, will his friends and favorites promote the
election of a man of talents, probity, and popularity for Vice President,
and who may prove his rival? No! They will seek a man of moderate
talents, whose ambition is bounded by that office, and whose influence
will aid them in electing the President. This mode of election is
calculated to increase corruption, promote intrigue, and aid inordinate
ambition. The Vice President will be selected from some of the large
States; he will have a casting vote in this House; and feeble indeed must
his talents be, if his influence will not be equal to that of a member.
This will, in fact, be giving to that State a third Senator.
In the Southern States the blacks are considered as property, and the
States in which they live are thereby entitled to eighteen additional
Electors and Representatives--a number equal to all the Electors and
Representatives that four States and a half are entitled to elect. Will
you, by this amendment, lessen the weight and influence of the Eastern
States in the election of your first officers, and still retain this
unequal article in your constitution? Shall property in one part of the
Union give an increase of Electors, and be wholly excluded in other
States? Can this be right? Will it strengthen the Union?
Mr. TRACY.--I shall attempt to prove, sir, that the resolution before
us contains principles which have a manifest tendency to deprive the
small States of an important right, secured to them by a solemn and
constitutional compact, and to vest an overwhelming power in the great
States. And, further, I shall attempt to show that, in many other points,
the resolution is objectionable, and, for a variety of causes, ought not
to be adopted.
As I shall be obliged, in delineating the main features of this
resolution, to mention the great States in the Union as objects of
jealousy, I wish it to be understood that no special stigma is intended.
“Man is man,” was the maxim expressed in an early part of this debate, by
the gentleman from South Carolina, (Mr. BUTLER,) and in application to
the subject of government, the maxim is worthy to be written in letters
of gold. Yes, sir, “man is man,” and the melancholy truth that he is
always imperfect and frequently wicked, induces us to fear his power,
and guard against his rapacity, by the establishment and preservation
of laws, and well-regulated constitutions of government. Man, when
connected with very many of his fellow-men, in a great State, derives
power from the circumstance of this numerous combination; and from every
circumstance which clothes him with additional power, he will generally
derive some additional force to his passions.
Having premised this, I shall not deem it requisite to make any apology,
when I attempt to excite the attention, the vigilance, and even the
jealousy of the small, in reference to the conduct of the great States.
The caution is meant to apply against the imperfections and passions
of man, generally, and not against any State, or description of men,
particularly.
It may be proper, in this place, to explain my meaning, when I make use
of the words “small” and “great,” as applicable to States.
Massachusetts has been usually called a great State; but, in respect
to all the operations of this resolution, she must, I think, be ranked
among the small States. The district of Maine is increasing rapidly,
and must, in the nature of things, soon become a State. To which
event, its location, being divided from what was the ancient Colony of
Massachusetts, by the intervention of New Hampshire, will very much
contribute. I believe there is a legislative provision of some years’
standing, authorizing a division at the option of Maine. When this event
shall occur, Massachusetts, although, in comparison with Connecticut and
Rhode Island, she will not be a small State, yet, in comparison with
many others, must be so considered. I think myself justifiable, then,
for my present purposes, in calling Maine, New Hampshire, Massachusetts,
Rhode Island, Connecticut, Vermont, New Jersey, Delaware, Maryland, and
South Carolina, small States. They are limited in point of territory,
and cannot reasonably expect any great increase of population for many
years, not, indeed, until the other States shall become so populous as
to discourage emigration, with agricultural views; which may retain the
population of the small States as seamen or manufacturers. This event,
if it ever arrives, must be distant. A possible exception only may exist
in favor of Maine; but, when we consider its climate, and a variety of
other circumstances, it is believed to form no solid exception to this
statement.
By the same rule of deciding, the residue of the States must be called
great; for although Georgia and several others are not sufficiently
populous, at this time, to be considered relatively great States, yet
their prospect of increase, with other circumstances, fairly bring them
within the description, in respect to the operation of the measure now
under consideration.
It will be recollected that, in the various turns which the debate has
taken, gentlemen have repeatedly said that the constitution was formed
for the people; that the good of the whole was its object; that nothing
was discernible in it like a contest of States, nothing like jealousy
of small States against the great; and although such distinctions and
jealousies might have existed under the first confederation, yet they
could have no existence under the last. And one gentleman (Mr. SMITH,
of Maryland) has said that he has been a member of this Government ten
years, and has heard nothing of great and small States, as in the least
affecting the operations of Government, or the feelings of those who
administer it.
Propriety, therefore, requires that we attentively examine the
constitution itself, not only to obtain correct ideas upon these
observations, so repeatedly urged, but to place in the proper light the
operations and effects of the resolution in debate. If we attend to the
constitution, we shall immediately find evident marks of concession
and compromise, and that the parties to these concessions were the
great and small States. And the members of the convention who formed
the instrument have, in private information and public communications,
united in the declaration, that the constitution was the result of
concession and compromise between the great and small States. In this
examination of the constitution it will be impossible to keep out of
view our political relations under the first confederation. We primarily
united upon the footing of complete State equality--each State had one,
and no State had more than one vote in the Federal Council or Congress.
With such a confederation we successfully waged war, and became an
independent nation. When we were relieved from the pressure of war, that
confederation, both in structure and power, was found inadequate to
the purposes for which it was established. Under these circumstances,
the States, by their convention, entered into a new agreement, upon
principles better adapted to promote their mutual security and happiness.
But this last agreement, or constitution, under which we are now united,
was manifestly carved out of the first confederation. The small States
adhered tenaciously to the principles of State equality; and gave up
only a part of that federative principle, complete State equality, and
that with evident caution and reluctance. To this federative principle
they were attached by habit; and their attachment was sanctioned and
corroborated by the example of most if not all the ancient and the modern
confederacies. And when the great States claimed a weight in the councils
of the nation proportionate to their numbers and wealth, the novelty of
the claim, as well as its obvious tendency to reduce the sovereignty of
the small States, must have produced serious obstacles to its admission.
Hence it is, that we find in the constitution but one entire departure
from the federal principle. The House of Representatives is established
upon the popular principle, and given to numbers and wealth, or to the
great States, which, in this view of the subject, are synonymous. It was
thought, by the convention, that a consolidation of the States into one
simple Republic would be improper. And the local feelings and jealousies
of all, but more especially of the small States, rendered a consolidation
impracticable.
The Senate, who have the power of a legislative check upon the House
of Representatives, and many other extensive and important powers, is
preserved as an entire federative feature of Government as it was enjoyed
by the small States, under the first confederacy.
In the article which obliges the Electors of President to vote for one
person not an inhabitant of the same State with themselves, is discovered
State jealousy. In the majorities required for many purposes by the
constitution, although there were other motives for the regulations, yet
the jealousy of the small States is clearly discernible. Indeed, sir,
if we peruse the constitution with attention, we shall find the small
States are perpetually guarding the federative principle, that is, State
equality. And this, in every part of it, except in the choice of the
House of Representatives, and in their ordinary legislative proceedings.
They go so far as to prohibit any amendment which may affect the equality
of States in the Senate.
This is guarding against almost an impossibility, because the Senators
of small States must be criminally remiss in their attendance, and
the Legislatures extremely off their guard, if they permit such
alterations, which aim at their own existence. But lest some accident,
some unaccountable blindness or perfidy should put in jeopardy the
federative principle in the Senate, they totally and for ever prohibit
all attempts at such a measure. In the choice of President, the mutual
caution and concession of the great and small States is, if possible,
more conspicuous than in any other part of the constitution.
He is to be chosen by Electors appointed as the State Legislatures shall
direct, not according to numbers entirely, but adding two Electors in
each State as representatives of State sovereignty. Thus Delaware obtains
three votes for President, whereas she could have but one in right of
numbers. Yet, mixed as this mode of choice is, with both popular and
federative principles, we see the small States watching its motions and
circumscribing it to one attempt only, and, on failure of an Electoral
choice, they instantly seize upon the right of a federal election, and
select from the candidates a President by States and not by numbers. In
confirmation of my assertion, that this part of the constitution was
peculiarly the effect of compromise between the great and small States,
permit me to quote an authority which will certainly have great weight,
not only in the Senate, but through the Union, I mean that of the present
Secretary of State, (Mr. Madison,) who was a leading member of the
Federal Convention who formed, and of the Virginia Convention who adopted
the constitution.
In the Debates of the Virginia Convention, volume 3, page 77, Mr. Madison
says, speaking of the mode of electing the President:
“As to the eventual voting by States, it has my approbation.
The lesser States and some larger States will be generally
pleased by that mode. The Deputies from the small States
argued, and there is some force in their reasoning, that, when
the people voted, the large States evidently had the advantage
over the rest, and, without varying the mode, the interests of
the little States might be neglected or sacrificed. Here is a
compromise. For in the eventual election, the small States will
have the advantage.”
After this view of the constitution, let us inquire, what is the direct
object of the proposed alteration in the choice of President?
To render more practicable and certain the choice by Electors--and for
this reason: that the people at large, or in other words, that the great
States, ought to have more weight and influence in the choice. That it
should be brought nearer to the popular and carried further from the
federative principle. This claim we find was made at the formation of
the constitution. The great States naturally wished for a popular choice
of First Magistrate. This mode was sanctioned by the example of many
of the States in the choice of Governor. The small States claimed a
choice on the federative principle, by the Legislatures, and to vote by
States; analogies and examples were not wanting to sanction this mode of
election. A consideration of the weight and influence of a President of
this Union, must have multiplied the difficulties of agreeing upon the
mode of choice. But as I have before said, by mutual concession, they
agreed upon the present mode, combining both principles and dividing
between the two parties, thus mutually jealous, as they could, this
important privilege of electing a Chief Magistrate.
This mode then became established, and the right of the small States
to elect upon the federative principle, or by States, in case of the
contingency of electoral failure of choice, cannot with reason and
fairness be taken from them, without their consent, and on a full
understanding of its operation; since it was meant to be secured to them
by the constitution, and was one of the terms upon which they became
members of the present confederacy; and for which privilege they gave an
equivalent to the great States in sacrificing so much of the federative
principle, or State equality.
The constitution is nicely balanced, with the federative and popular
principles; the Senate are the guardians of the former, and the House of
Representatives of the latter; and any attempts to destroy this balance,
under whatever specious names or pretences they may be presented,
should be watched with a jealous eye. Perhaps a fair definition of the
constitutional powers of amending is, that you may upon experiment so
modify the constitution in its practice and operation, as to give it,
upon its own principles, a more complete effect. But this is an attack
upon a fundamental principle established after a long deliberation,
and by mutual concession, a principle of essential importance to the
instrument itself, and an attempt to wrest from the small States a vested
right, and by it, to increase the power and influence of the large
States. I shall not pretend, sir, that the parties to this constitutional
compact cannot alter its original essential principles, and that such
alterations may not be effected under the name of amendment; but, let
a proposal of that kind come forward in its own proper and undisguised
shape; let it be fairly stated to Congress, to the State Legislatures,
to the people at large, that the intention is to change an important
federative feature in the constitution, which change in itself and all
its consequences, will tend to a consolidation of this Union into a
simple republic; let it be fairly stated, that the small States have too
much agency in the important article of electing a Chief Magistrate,
and that the great States claim the choice; and we shall then have a
fair decision. If the Senators of the small States, and if their State
Legislatures, will then quietly part with the right they have, no person
can reasonably complain.
Nothing can be more obvious, than the intention of the plan adopted by
our constitution for choosing a President. The Electors are to nominate
two persons, of whom they cannot know which will be President; this
circumstance not only induces them to select both from the best men; but
gives a direct advantage into the hands of the small States even in the
electoral choice. For they can always select from the two candidates set
up by the Electors of large States, by throwing their votes upon their
favorite, and of course giving him a majority; or, if the Electors of
the large States should, to prevent this effect, scatter their votes
for one candidate, then the Electors of the small States would have it
in their power to elect a Vice President. So that, in any event, the
small States will have a considerable agency in the election. But if
the discriminating or designating principle is carried, as contained in
this resolution, the whole, or nearly the whole right and agency of the
small States, in the electoral choice of Chief Magistrate, is destroyed,
and their chance of obtaining a federative choice by States, if not
destroyed, is very much diminished.
The whole power of election is now vested in the two parties; numbers and
States, or, great and small States; and it is demonstration itself, if
you increase the power of the one, in just such proportion you diminish
that of the other. Do the gentlemen suppose that the public will, when
constitutionally expressed by a majority of States, in pursuance of the
federative principle of our Government, is of less validity, or less
binding upon the community at large, than the public will expressed by
a popular majority? The framers of your constitution, the people who
adopted it, meant, that the public will, in the choice of a President,
should be expressed by Electors, if they could agree, and if not, the
public will should be expressed by a majority of the States, acting in
their federative capacity, and that in both cases the expression of the
public will should be equally binding.
It is pretended that the public will can never properly or
constitutionally be expressed by a majority of numbers of the people, or
of the House of Representatives. This may be a pleasing doctrine enough
to great States; but it is certainly incorrect. Our constitution has
given the expression of the public will, in a variety of instances, other
than that of the choice of President, into very different hands from
either House of Representatives or the people at large. The President and
Senate, and in many cases the President alone, can express the public
will, in appointments of high trust and responsibility, and it cannot
be forgotten that the President sometimes expresses the public will by
removals. Treaties, highly important expressions of the public will, are
made by the President and Senate; and they are the supreme law of the
land. In the several States, many great offices are filled, and even
the Chief Magistracy, by various modes of election. The public will is
sometimes expressed by pluralities instead of majorities, sometimes by
both branches of the Legislatures, and sometimes by one, and in certain
contingencies, elections are settled by lot. The people have adopted
constitutions containing such regulations, and experience has proved that
they are well calculated to preserve their liberties and promote their
happiness. From what good or even pardonable motive, then, can it be
urged that the present mode of electing our President has a tendency to
counteract the public will? Do gentlemen intend to destroy every federal
feature in this constitution? And is this resolution a precursor to a
complete consolidation of the Union, and to the establishment of a simple
republic?--Or will it suffice to break down every federative feature
which secures to one portion of the Union, to the small States, their
rights?
Mr. TAYLOR.--The opposition to this discriminating amendment to the
constitution is condensed into a single stratagem, namely: an effort to
excite the passion of jealousy in various forms. Endeavors have been made
to excite geographical jealousies--a jealousy of the smaller against the
larger States--a jealousy in the people against the idea of amending
the constitution; and even a jealousy against individual members of
this House. Sir, is this passion a good medium through which to discern
truth, or is it a mirror calculated to reflect error? Will it enlighten
or deceive? Is it planted in good or in evil--in moral or in vicious
principles? Wherefore, then, do gentlemen endeavor to blow it up? Is it
because they distrust the strength of their arguments, that they resort
to this furious and erring passion? Is it because they know that
----“Trifles light as air,
Are, to the jealous, confirmations strong
As proofs of holy writ!”
So far as these efforts have been directed towards a geographical
demarcation of the interests of the Union into North and South, in order
to excite a jealousy of one division against another; and, so far as they
have been used to create suspicions of individuals, they have been either
so feeble, inapplicable, or frivolous, as to bear but lightly upon the
question, and to merit but little attention. But the attempts to array
States against States because they differ in size, and to prejudice the
people against the idea of amending their constitution, bear a more
formidable aspect, and ought to be repelled, because they are founded on
principles the most mischievous and inimical to the constitution, and,
could they be successful, are replete with great mischiefs.
Towards exciting this jealousy of smaller States against larger States,
the gentleman from Connecticut (Mr. TRACY) had labored to prove that the
federal principle of the constitution of the United States was founded in
the idea of minority invested with operative power. That, in pursuance
of this principle, it was contemplated and intended that the election of
a President should frequently come into the House of Representatives,
and to divert it from thence by this amendment would trench upon the
federal principle of our constitution, and diminish the rights of the
smaller States, bestowed by this principle upon them. This was the scope
of his argument to excite their jealousy, and is the amount also of
several other arguments delivered by gentlemen on the same side of the
question. He did not question the words, but the ideas of gentlemen.
Words, selected from their comrades, are easily asserted to misrepresent
opinions, as he had himself experienced during the discussion on the
subject.
This idea of federalism ought to be well discussed by the smaller
States, before they will suffer it to produce the intended effect--that
of exciting their jealousy against the larger. To him it appeared to
be evidently incorrect. Two principles sustain our constitution: one a
majority of the people, the other a majority of the States; the first
was necessary to preserve the liberty or sovereignty of the people; the
last, to preserve the liberty or sovereignty of the States. But both are
founded in the principle of majority; and the effort of the constitution
is to preserve this principle in relation both to the people and the
States, so that neither species of sovereignty or independence should
be able to destroy the other. Many illustrations might be adduced. That
of amending the constitution will suffice. Three-fourths of the States
must concur in this object, because a less number or a majority of States
might not contain a majority of people; therefore, the constitution
is not amendable by a majority of States, lest a species of State
sovereignty might, under color of amending the constitution, infringe
the right of the people. On the other hand, a majority of the people
residing in the large States cannot amend the constitution, lest they
should diminish or destroy the sovereignty of the small States, the
federal Union, or federalism itself. Hence a concurrence of the States
to amend the constitution became necessary, not because federalism was
founded in the idea of minority, but for a reason the very reverse
of that idea--that is, to cover the will both of a majority of the
people and a majority of States, so as to preserve the great element
of self-government, as it regarded State sovereignty, and also as it
regarded the sovereignty of the people.
For this great purpose certain political functions are assigned to be
performed, under the auspices of the State or federal principle, and
certain others under the popular principle. It was the intention of the
constitution that these functions should be performed in conformity to
its principle. If that principle is in fact a government of a minority,
then these functions ought to be performed by a minority. When the
federal principle is performing a function, according to this idea,
a majority of the States ought to decide. And, by the same mode of
reasoning, when the popular principle is performing a function, then a
minority of the people ought to decide. This brings us precisely to the
question of the amendment. It is the intention of the constitution that
the popular principle shall operate in the election of a President and
Vice President. It is also the intention of the constitution that the
popular principle, in discharging the functions committed to it by the
constitution, should operate by a majority and not by a minority. That
the majority of the people should be driven, by an unforeseen state of
parties, to the necessity of relinquishing their will in the election of
one or the other of these officers, or that the principle of majority, in
a function confided to the popular will, should be deprived of half its
rights, and be laid under a necessity of violating its duty to preserve
the other half, is not the intention of the constitution.
But the gentleman from Connecticut has leaped over all this ground,
and gotten into the House of Representatives, without considering
the principles of the constitution, as applicable to the election of
President and Vice President by Electors, and distinguishing them
from an election by the House of Representatives. And by mingling and
interweaving the two modes of electing together, a considerable degree
of complexity has been produced. If, however, it is admitted that in an
election of a President and Vice President by Electors, the will of the
electing majority ought fairly to operate, and that an election by the
will of a minority would be an abuse or corruption of the principles of
the constitution, then it follows that an amendment, to avoid this abuse,
accords with, and is necessary to save these principles. In like manner,
had an abuse crept into the same election, whenever it was to be made
under the federal principle by the House of Representatives, enabling
a minority of States to carry the election, it would not have violated
the intention of the constitution to have corrected this abuse, also,
by an amendment. For, sir, I must suppose it to have been the intention
of the constitution that both the federal principle and the popular
principle should operate in those functions respectively assigned to
them, perfectly and not imperfectly--that is, the former by a majority of
States, and the latter by a majority of the people.
Under this view of the subject, the amendment ought to be considered.
Then the question will be, whether it is calculated or not to cause the
popular principle, applied by the constitution in the first instance, to
operate perfectly, and to prevent the abuse of an election by a minority?
If it is, it corresponds with the intention, diminishes nothing of the
rights of the smaller States, and, of course, affords them no cause of
jealousy.
Sir, it could never have been the intention of the constitution to
produce a state of things by which a majority of the popular principle
should be under the necessity of voting against its judgment to secure a
President, and by which a minor faction should acquire a power capable
of defeating the majority in the election of President, or of electing
a Vice President contrary to the will of the electing principle. To
permit this abuse would be a fraudulent mode of defeating the operation
of the popular principle in this election, in order to transfer it to
the federal principle--to disinherit the people for the sake of endowing
the House of Representatives; whereas it was an accidental and not an
artificial disappointment in the election of a President, against which
the constitution intended to provide. A fair and not an unfair attempt
to elect was previously to be made by the popular principle, before
the election was to go into the House of Representatives. And if the
people of all the States, both large and small, should, by an abuse of
the real design of the constitution, be bubbled out of the election of
executive power, by leaving to them the nominal right of an abortive
effort, and transferring to the House of Representatives the substantial
right of a real election, nothing will remain but to corrupt the election
in that House by some of those abuses of which elections by diets are
susceptible, to bestow upon executive power an aspect both formidable and
inconsistent with the principles by which the constitution intended to
mould it.
The great check imposed upon executive power was a popular mode of
election; and the true object of jealousy, which ought to attract the
attention of the people of every State, is any circumstance tending
to diminish or destroy that check. It was also a primary intention of
the constitution to keep executive power independent of legislative;
and although a provision was made for its election by the House of
Representatives in a possible case, that possible case never was
intended to be converted into the active rule, so as to destroy in a
degree the line of separation and independency between the executive and
legislative power. The controversy is not therefore between larger and
smaller States, but between the people of every State and the House of
Representatives. Is it better that the people--a fair majority of the
popular principle--should elect executive power; or, that a minor faction
should be enabled to embarrass and defeat the judgment and will of this
majority, and throw the election into the House of Representatives? This
is the question. If this amendment should enable the popular principle
to elect executive power, and thus keep it separate and distinct from
legislation, the intention of the constitution, the interest of the
people, and the principles of our policy, will be preserved; and if so,
it is as I have often endeavored to prove in this debate, the interest of
the smaller States themselves, that the amendment should prevail. For,
sir, is an exposure of their Representatives to bribery and corruption
(a thing which may possibly happen at some future day, when men lose
that public virtue which now governs them) an acquisition more desirable
than all those great objects best (if not exclusively) attainable by
the election of executive power by the popular principle of the Federal
Government, as the constitution itself meditates and prefers?
So far, then, the amendment strictly coincides with the constitution and
with the interests of the people of every State in the Union. But suppose
by some rare accident the election should still be sent into the House of
Representatives, does not the amendment then afford cause of jealousy to
the smaller States? Sir, each State has but one vote, whether it is large
or small; and the President and Vice President are still to be chosen out
of five persons. Such is the constitution in both respects now. To have
enlarged the number of nominees, would have increased the occurrence of
an election by the House of Representatives; and if, as I have endeavored
to prove, it is for the interest of every State, that the election should
be made by the popular principle of Government and not by that House,
then it follows, that whatever would have a tendency to draw the election
into that House, is against the interest of every State in the Union; and
that every State in the Union is interested to avoid an enlargement of
the nominees, if it would have such a tendency.
To illustrate this argument, I will repeat a position which I lately
advanced, namely, that the substance of a constitution may be effectually
destroyed, and yet its form may remain unaltered. England illustrates
it. The Government of that country took its present form in the
thirteenth century; but its aspect in substance has been extremely
different at different periods, under the same form. Without taking
time to mark the changes in substance which have taken place under
the form of Kings, Lords, and Commons, it will suffice to cast our
eyes upon the present state of that Government. What are now its chief
and substantial energies? Armies, debt, executive patronage, penal
laws, and corporations. These are the modern energies or substance
of the English monarchy; to the ancient English monarchy they were
unknown. Of the ancient, they were substantial abuses; for, whether
these modern energies are good or bad, they overturned the ancient
monarchy substantially, without altering its form. Under every change
of Administration these abuses proceeded. The _outs_ were clamorous for
preserving the constitution, as they called it; for, though divorced
from its administration, the hope of getting in again caused them to
maintain abuses, by which their avarice or ambition might be gratified
upon the next turn of the wheel; just as in Prussia, where divorces are
common, nothing is more usual than for late husbands to affect a violent
passion for a former wife, if she carried off from him a good estate! And
the _ins_, fearing the national jealousy, and the prepossession against
amending the form of Government, and meeting new abuses by new remedies,
brought no relief to the nation. So that under every change of men abuses
proceeded.
The solution of this effect exists in the species of political craft
similar to priestcraft. Mankind were anciently deprived of their
religious liberty by a dissemination of a fanatical zeal for some idol;
in times of ignorance, this idol was of physical structure; and when
that fraud was detected, a metaphysical idol in the shape of a tenet or
dogma was substituted for it, infinitely more pernicious in its effects,
because infinitely more difficult of detection. The same system has
been pursued by political craft. It has ever labored to excite the same
species of idolatry and superstition for the same reason, namely, to
conceal its own frauds and vices. Sometimes it sets up a physical, at
others a metaphysical idol, as the object of vulgar superstition. Of one,
the former “Grand Monarch of France;” of the other, the present “Church
and State” tenet of England is an evidence. And if our constitution is
to be made like the “Church and State” tenet of England, a metaphysical
political idol, which it will be sacrilege to amend, even for the sake of
saving both that and the national liberty; and if, like that tenet, it is
to be exposed to all the means which centuries may suggest to vicious men
for its substantial destruction, it is not hard to imagine that it also
may become a monument of the inefficacy of unalterable forms of political
law to correct avarice and ambition in the new and multifarious shapes
they are for ever assuming.
It has been urged, sir, by the gentlemen in opposition, in a mode, as
if they supposed we wished to conceal or deny it, that one object of
this amendment is to bestow upon the majority a power to elect a Vice
President. Sir, I avow it to be so. This is one object of the amendment;
and the other, as to which I have heretofore expressed my sentiments,
is to enable the Electors, by perfecting the election of a President,
to keep it out of the House of Representatives. Are not both objects
correct, if, as I have endeavored to prove, the constitution, in all
cases where it refers elections to the popular principle, intended that
principle to act by majorities? Did the constitution intend that any
minor faction should elect a Vice President? If not, then an amendment
to prevent it accords with, and is representative of, the constitution.
Permit me here again to illustrate by an historical case. England, in the
time of Charles the Second, was divided into two parties--Protestants
and Papists--and the heir to the throne was a Papist. The Protestants,
constituting the majority of the nation, passed an exclusion bill, but
it was defeated, and the minor Papist faction, in the person of the
Duke of York, got possession of executive power. The consequences were,
domestic oppressions and rebellions, foreign wars occasionally for almost
a century, and the foundation of a national debt, under which the nation
has been ever since groaning, and under which the Government will finally
expire.
Had the majority carried and executed the proposed exclusion of James
II. from executive power, the English would have escaped all these
calamities. Such precisely may be our case. I beg again that it may be
understood that, in this application, I speak prospectively and not
retrospectively.
But it is far from being improbable, that in place of these religious
parties, political parties may arise of equal zeal and animosity. We may
at some future day see our country divided into a republican party and
a monarchical party. Is it wise, or according to the intention of the
constitution, that a minor monarchical faction should, by any means,
acquire the power of electing a Vice President, the possible successor
to executive power? Ought a republican majority to stake the national
liberty upon the frail life of one man? Will not a monarchical Executive
overturn the system of a republican Executive? And ought the United
States to shut their eyes upon this possible danger until the case shall
happen, when it may be too late to open them?
Sir, let us contemplate the dreadful evils which the English nation have
suffered from the cause of investing executive power in a man hostile
to the national opinion, and avoid them. They suffered, because their
exclusion bill was abortive. Election is our exclusion bill. Its efficacy
depends upon its being exercised by a majority. It is only a minority
which can render election insufficient to exclude monarchical principles
from executive power. It is against minority that election is intended to
operate, because minority is the author of monarchy and aristocracy.
Shall we, sir, be so injudicious as to make election destroy the
principle of election by adhering to a mode of exercising it, now seen to
be capable of bestowing upon a minority the choice of a Vice President?
Shall we make election, invented to exclude monarchy, a handmaid for
its introduction? Or shall we, if we do not see monarchy at this day
assailing our republican system, conclude that it never will; although
we know that this system has but two foes, of whom monarchy is one? No,
sir, let us rather draw instruction from the prophetic observations of
a member of the English House of Commons, whilst the bill for excluding
James II. was depending, who said:
“I hear a lion in the lobby roar,
Say, Mr. Speaker, shall we shut the door,
And keep him there! Or shall we let him in,
To try if we can get him out again!”
Instead of shutting the door, the English left it open; tyranny got in;
and the evils produced by its expulsion, to that nation, may possibly
have been equal to those which submission would have produced.
The question was called for loudly at half-past nine, and put--the yeas
and nays being taken, were:
YEAS.--Messrs. Anderson, Bailey, Baldwin, Bradley,
Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Jackson,
Logan, Maclay, Nicholas, Potter, Israel Smith, John Smith,
Samuel Smith, Stone, Taylor, Worthington, and Wright--22.
NAYS.--Messrs. Adams, Butler, Dayton, Hillhouse, Olcott,
Pickering, Plumer, Tracy, Wells, and White--10.
Upon the PRESIDENT declaring the question carried by two-thirds--
Mr. TRACY said he denied that the question was fairly decided. He took it
to be the intention of the constitution, that there should be two-thirds
of the whole number of Senators elected, which would make the number
necessary to its passage 23.
It was moved to adjourn to Monday.
Mr. TAYLOR said that since it was proposed to adjourn to Monday, when he
should be disqualified to sit in that House, he hoped the Senate would
not rise without deciding the question definitively on the gentleman’s
objections.
Mr. TRACY said he certainly would avail himself of the principle to
oppose its passage through the State Legislatures.
The PRESIDENT declared the question had passed the Senate by the majority
required, and conformable to the constitution and former usage.
The amendment, as adopted, is as follows:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds of
both Houses concurring_, That, in lieu of the third paragraph
of the first section of the second article of the Constitution
of the United States, the following be proposed as an amendment
to the Constitution of the United States, which, when ratified
by three-fourths of the Legislatures of the several States,
shall be valid, to all intents and purposes, as part of the
said Constitution, to wit:
The Electors shall meet in their respective States and vote
by ballot for President and Vice President, one of whom, at
least, shall not be an inhabitant of the same State with
themselves; they shall name in their ballots the person voted
for as President, and, in distinct ballots, the person voted
for as Vice President; and they shall make distinct lists of
all persons voted for as President, and of all persons voted
for as Vice President, and of the number of votes for each,
which lists they shall sign and certify, and transmit sealed to
the seat of Government of the United States, directed to the
President of the Senate. The President of the Senate shall,
in the presence of the Senate and House of Representatives,
open all the certificates, and the votes shall then be
counted. The person having the greatest number of votes for
the President, shall be the President, if such number be a
majority of the whole number of electors appointed: and if
no person have such majority, then, from the persons having
the highest numbers, not exceeding three, on the list of
those voted for as President, the House of Representatives
shall choose, immediately, by ballot, the President. But, in
choosing the President, the votes shall be taken by States,
the representation from each State having one vote; a quorum
for this purpose shall consist of a member or members,
from two-thirds of the States, and a majority of all the
States shall be necessary to a choice. And if the House of
Representatives shall not choose a President, whenever the
right of choice shall devolve upon them, before the fourth day
of March next following, then the Vice President shall act as
President, as in the case of death or any other constitutional
disability of the President.
The person having the greatest number of votes as Vice
President, shall be the Vice President, if such number be a
majority of the whole number of electors appointed; and if no
person have a majority, then, from the two highest numbers
on the list, the Senate shall choose the Vice President; a
quorum for the purpose shall consist of two-thirds of the
whole number of Senators, and a majority of the whole number
shall be necessary to a choice. But no person constitutionally
ineligible to the office of President, shall be eligible to
that of Vice President of the United States.
_Ordered_, That the Secretary request the concurrence of the House of
Representatives in this resolution.
MONDAY, December 5.
_Impressment of Seamen._
The following messages were received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate of the United States_:
In compliance with the desire of the Senate, expressed in
their resolution of the 22d of November, on the impressment of
seamen in the service of the United States, by the agents of
foreign nations; I now lay before the Senate a letter from the
Secretary of State, with a specification of the cases of which
information has been received.
TH. JEFFERSON.
DEC. 5, 1803.
* * * * *
_Tripolitan Aggression._
_To the Senate and House of Representatives of the United
States_:
I have the satisfaction to inform you, that the act of
hostility mentioned, in my message of the 4th of November, to
have been committed by a cruiser of the Emperor of Morocco,
on a vessel of the United States, has been disavowed by the
Emperor. All differences in consequence thereof have been
amicably adjusted, and the Treaty of 1796, between this country
and that, has been recognized and confirmed by the Emperor,
each party restoring to the other what had been detained or
taken. I enclose the Emperor’s orders given on this occasion.
The conduct of our officers generally, who have had a part in
these transactions, has merited entire approbation.
The temperate and correct course pursued by our Consul, Mr.
Simpson, the promptitude and energy of Commodore Preble,
the efficacious co-operation of Captains Rodgers and
Campbell, of the returning squadron, the proper decision of
Captain Bainbridge, that a vessel which had committed an
open hostility, was of right to be detained for inquiry and
consideration, and the general zeal of the other officers and
men, are honorable facts, which I make known with pleasure. And
to these I add, what was indeed transacted in another quarter,
the gallant enterprise of Captain Rodgers, in destroying, on
the coast of Tripoli, a corvette of that power, of 22 guns.
I recommend to the consideration of Congress, a just
indemnification for the interest acquired by the captors of
the Mishouda and Mirboha, yielded by them for the public
accommodation.
TH. JEFFERSON.
DEC. 5, 1803.
The Messages and papers therein respectively referred to, were read.
_Ordered_, That they severally lie for consideration.
WEDNESDAY, December 7.
AARON BURR, Vice President of the United States and President of the
Senate, attended.
JOHN ARMSTRONG, appointed a Senator by the Executive of the State of New
York, in the room of De Witt Clinton, resigned, attended.
THURSDAY, December 8.
The credentials of Mr. ARMSTRONG were read, and the oath was administered
to him by the Vice President as the law provides.
MONDAY, December 12.
_Amendment of the Constitution._
The Senate resumed the consideration of the last resolution reported
by the committee appointed on the 22d of October last, to consider the
motion for an amendment to the constitution in the mode of electing the
President and Vice President of the United States; which is as follows:
“_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds
of both Houses concurring_, That the following amendment be
proposed to the Legislatures of the several States as an
amendment to the constitution of the United States, which,
when ratified by three-fourths of the said Legislature, shall
be valid, to all intents and purposes, as part of the said
Constitution, to wit;
“That no person who has been twice successively elected
President of the United States shall be eligible as President
until four years shall have elapsed: but any citizen who
has been President of the United States may, after such
intervention, be eligible to the office of President for four
years and no longer.”
On the question to agree to this resolution, it passed in the
negative--yeas 4, nays 25, as follows:
YEAS.--Messrs. Anderson, Butler, Dayton, and Jackson.
NAYS.--Messrs. Adams, Armstrong, Bailey, Baldwin, Bradley,
Breckenridge, Brown, Cocke, Condit, Ellery, Franklin,
Hillhouse, Logan, Maclay, Olcott, Pickering, Plumer, Potter,
Israel Smith, John Smith, Samuel Smith, Tracy, White,
Worthington, and Wright.
TUESDAY, December 13.
ABRAHAM B. VENABLE, appointed a Senator by the Legislature of the State
of Virginia on the 7th instant, produced his credentials, was qualified,
and took his seat in the Senate.
_Repeal of Bankrupt Act._
The bill, entitled, “An act to repeal an act, entitled ‘An act to
establish a uniform system of bankruptcy throughout the United States,’”
was read the third time; and, on motion, that the further consideration
of this bill be postponed to the second Monday in December next, it
passed in the negative--yeas 13, nays, 17, as follows:
YEAS.--Messrs. Adams, Armstrong, Bailey, Baldwin, Bradley, Brown, Condit,
Jackson, Israel Smith, Samuel Smith, Tracy, White, and Wright.
NAYS.--Messrs. Anderson, Breckenridge, Butler, Cocke, Dayton, Ellery,
Franklin, Hillhouse, Logan, Maclay, Olcott, Pickering, Plumer, Potter,
John Smith, Venable, and Worthington.
On the question, “Shall this bill pass?” it was determined in the
affirmative--yeas 17, nays 12, as follows:
YEAS.--Messrs. Anderson, Breckenridge, Butler, Cocke, Dayton, Ellery,
Franklin, Hillhouse, Logan, Maclay, Olcott, Pickering, Plumer, Potter,
John Smith, Venable, and Worthington.
NAYS.--Messrs. Adams, Armstrong, Bailey, Baldwin, Bradley, Brown, Condit,
Israel Smith, Samuel Smith, Tracy, White, and Wright.
So it was _Resolved_, That this bill do pass.[5]
THURSDAY, December 15.
_Classification of Senators._
On motion, the Senate proceeded to ascertain the classes in which the
Senators of the State of Ohio should be inserted, as the constitution and
rule heretofore adopted prescribe; and it was ordered, that two lots,
No. 2 and a blank, be by the Secretary rolled up and put in the ballot
box; and it was understood that the Senator who should draw the lot No.
2 should be inserted in the class of Senators whose terms of service
respectively expire in four years from and after the third day of March,
1803, in order to equalize the classes.
Accordingly, Mr. WORTHINGTON drew lot No. 2, and Mr. JOHN SMITH drew the
blank.
It was then agreed that two lots, Nos. 1 and 3, should be by the
Secretary rolled up and put into the ballot-box, and one of these
be drawn by Mr. JOHN SMITH, the Senator from the State of Ohio, not
classed; and it was understood that, if he should draw lot No. 1, he
should be inserted in the class of Senators whose terms of service will
respectively expire in two years from and after the third day of March,
1803; but, if he should draw lot No. 3, it was understood that he should
be inserted in the class of Senators whose terms respectively expire in
six years from and after the third day of March, 1803. Mr. JOHN SMITH
drew lot No. 3, and is classed accordingly.
FRIDAY, December 16.
_Importation of Slaves._
The Senate took into consideration the motion made yesterday, that
a committee be appointed to inquire whether any, and, if any, what
amendments ought to be made in the act, entitled “An act to prevent the
importation of certain persons into certain States, by the laws whereof
their admission is prohibited,” and that the committee have leave to
report by bill or otherwise; and the motion was adopted; and
_Ordered_, That Messrs. FRANKLIN, VENABLE, and I. SMITH, be this
committee.
MONDAY, December 19.
_Admissions on the Floor._
The Senate took into consideration the motion made on the 16th instant,
that no person be admitted on the floor of the Senate Chamber except
members of the House of Representatives, foreign ministers, and the Heads
of Departments, unless introduced by a member of the Senate.
On motion, it was agreed to strike out the words “unless introduced by a
member of the Senate;” and on motion, it was agreed to subjoin, after the
word “Departments,” “and Judges of the Supreme and District Courts of the
United States.”
On motion to insert after the word “States,” “and the ladies,” it passed
in the negative--yeas 12, nays 16, as follows:
YEAS.--Messrs. Anderson, Breckenridge, Brown, Dayton, Jackson,
Maclay, Potter, I. Smith, S. Smith, Tracy, White, and Wright.
NAYS.--Messrs. Adams, Armstrong, Bailey, Baldwin, Bradley,
Cocke, Condit, Ellery, Franklin, Hillhouse, Olcott, Pickering,
Plumer, J. Smith, Venable, and Worthington.
On motion to insert after the word “States,” “the Governors and
Councillors of the respective States, and the Representatives of the
State Legislatures,” it passed in the negative--yeas 13, nays 15, as
follows:
YEAS.--Messrs. Adams, Anderson, Bailey, Breckenridge,
Dayton, Maclay, Potter, I. Smith, S. Smith, Tracy, Venable,
Worthington, and Wright.
NAYS.--Messrs. Armstrong, Baldwin, Bradley, Brown, Cocke,
Condit, Ellery, Franklin, Hillhouse, Jackson, Olcott,
Pickering, Plumer, J. Smith, and White.
On motion to agree to the resolution amended as follows:
_Resolved_, That no person be admitted on the floor of the
Senate Chamber, except members of the House of Representatives,
foreign ministers, and Heads of Departments, and Judges of the
Supreme and District Courts of the United States:
It was determined in the negative--yeas 7, nays 21, as follows:
YEAS.--Messrs. Adams, Bailey, Condit, Dayton, Franklin,
Jackson, and Wright.
NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bradley,
Breckenridge, Brown, Cocke, Ellery, Hillhouse, Maclay, Olcott,
Pickering, Plumer, Potter, I. Smith, S. Smith, Tracy, Venable,
White, and Worthington.
FRIDAY, December 30.
_Erection of Louisiana into two Territories._
Mr. BRECKENRIDGE, from the committee appointed, on the 5th instant, for
that purpose, reported a bill erecting Louisiana into two Territories,
and providing for the temporary government thereof; and the bill was
read, and ordered to the second reading.
TUESDAY, January 3, 1804.
_Erection of Contingent Fund._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
I now lay before the Congress the annual account of the fund
established for defraying the contingent charges of Government.
No occasion having arisen for making use of any part of it in
the present year, the balance of eighteen thousand five hundred
and sixty dollars, unexpended at the end of the last year,
remains now in the Treasury.
TH. JEFFERSON.
DEC. 31, 1803.
The Message and account therein referred to were read, and ordered to lie
on file.
MONDAY, January 16.
The VICE PRESIDENT communicated a letter of this date from the Hon.
THEODORUS BAILEY, resigning his seat in the Senate; which was read, and
_Ordered_, That the VICE PRESIDENT be requested to notify the Executive
of the State of New York accordingly.
_Transfer of Louisiana._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In execution of the act of the present session of Congress,
for taking possession of Louisiana, as ceded to us by France,
and for the temporary government thereof, Governor Claiborne,
of the Mississippi Territory, and General Wilkinson, were
appointed Commissioners to receive possession. They proceeded
with such regular troops as had been assembled at Fort
Adams, from the nearest posts, and with some militia of the
Mississippi Territory, to New Orleans. To be prepared for any
thing unexpected which might arise out of the transaction, a
respectable body of militia was ordered to be in readiness in
the States of Ohio, Kentucky, and Tennessee, and a part of
those of Tennessee was moved on to the Natchez. No occasion,
however, arose for their services. Our Commissioners, on their
arrival at New Orleans, found the province already delivered
by the Commissioners of Spain to that of France, who delivered
it over to them on the 20th day of December, as appears by
their declaratory act accompanying this. Governor Claiborne
being duly invested with the powers heretofore exercised
by the Governor and Intendant of Louisiana, assumed the
government on the same day, and, for the maintenance of law
and order, immediately issued the proclamation and address now
communicated.
On this important acquisition, so favorable to the immediate
interests of our western citizens, so auspicious to the
peace and security of the nation in general, which adds to
our country territories so extensive and fertile, and to our
citizens new brethren to partake of the blessings of freedom
and self-government, I offer to Congress and our country my
sincere congratulations.
TH. JEFFERSON.
JANUARY 16, 1804.
The Message and papers therein referred to were read.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof.
On motion to amend the fourth section of the bill, by inserting the
following words at the end thereof:
“The Legislative Council, a majority of the whole number
concurring therein, shall have power to elect, by ballot, a
delegate to Congress, who shall have a seat in the House of
Representatives, and shall have the right of debating, but not
of voting:”
It passed in the negative--yeas 12, nays 18, as follows:
YEAS.--Messrs. Anderson, Breckenridge, Cocke, Ellery, Logan,
Nicholas, Potter, Israel Smith, John Smith, Samuel Smith,
Venable, and Worthington.
NAYS.--Messrs. Adams, Armstrong, Baldwin, Bradley, Brown,
Condit, Dayton, Franklin, Hillhouse, Jackson, Maclay, Olcott,
Pickering, Plumer, Stone, Tracy, Wells, and White.
On motion to strike out the fourth section of the bill, as follows:
“SEC. 4. The legislative powers shall be vested in the
Governor, and in twenty-four of the most fit and discreet
persons of the Territory, to be called the Legislative Council,
who shall be selected annually by the Governor from among those
holding real estate therein, and who shall have resided one
year at least in the said Territory, and hold no office of
profit under the Territory, or the United States. The Governor,
by and with the advice and consent of the said Legislative
Council, or of a majority of them, shall have power to alter,
modify, or repeal, the laws which may be in force at the
commencement of this act. Their legislative powers shall also
extend to all the rightful subjects of legislation; but no law
shall be valid which is inconsistent with the Constitution of
the United States, with the laws of Congress, or which shall
lay any person under restraint, burden, or disability, on
account of his religious opinions, declarations, or worship;
in all which he shall be free to maintain his own, and not
be burdened for those of another. The Governor shall publish
throughout the said Territory all the laws which shall be
made, and shall, from time to time, report the same to the
President of the United States, to be laid before Congress;
which, if disapproved of by Congress, shall thenceforth be of
no force. The Governor or Legislative Council shall have no
power over the primary disposal of the soil, nor to tax the
lands of the United States, nor to interfere with the claims
to land within the said Territory. The Governor shall convene,
prorogue, and dissolve the Legislative Council whenever he
may deem it expedient. It shall be his duty to obtain all the
information in his power in relation to the customs, habits,
and dispositions, of the inhabitants of the said Territory, and
communicate the same, from time to time, to the President of
the United States.”
It passed in the negative--yeas 12, nays 18, as follows:
YEAS.--Messrs. Adams, Anderson, Cocke, Hillhouse, Olcott,
Plumer, Stone, Tracy, Venable, Wells, White, and Worthington.
NAYS.--Messrs. Armstrong, Baldwin, Bradley, Breckenridge,
Brown, Condit, Dayton, Ellery, Franklin, Jackson, Logan,
Maclay, Nicholas, Pickering, Potter, Israel Smith, John Smith,
and Samuel Smith.
TUESDAY, January 17.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof; and
on the question to amend the following clause of the fifth section:
“In all criminal prosecutions which are capital, the trial shall be by a
jury of twelve good and lawful men of the vicinage,” by striking out the
words “which are capital.”
It passed in the negative--yeas 11, nays 16, as follows:
YEAS.--Messrs. Adams, Anderson, Cocke, Logan, Maclay, Plumer,
Stone, Tracy, Wells, White, and Worthington.
NAYS.--Messrs. Baldwin, Bradley, Breckenridge, Condit, Dayton,
Ellery, Franklin, Jackson, Nicholas, Olcott, Pickering, Potter,
Israel Smith, John Smith, Samuel Smith, and Venable.
And after progress, on motion,
_Ordered_, That the consideration of this bill be further postponed.
After the adjournment of the High Court of Impeachments, the Senate
adjourned.
MONDAY, January 23.
The VICE PRESIDENT being absent on account of the ill state of his
health, the Senate proceeded to the election of a President _pro
tempore_, as the constitution provides; and the ballots having been
collected and counted, a majority thereof was for the Honorable JOHN
BROWN, who was accordingly elected President of the Senate _pro tempore_.
Mr. LOGAN presented the memorial of the American Convention for promoting
the abolition of slavery, and improving the condition of the African
race, signed Matthew Franklin, president, praying that such laws may be
enacted as shall prohibit the introduction of slaves into the Territory
of Louisiana, lately ceded to the United States; and the petition was
read.
TUESDAY, January 24.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof; and
on motion to strike out of the fourth section, from the word “annually,”
line fourth, to the words “United States,” line seventh, the words, “by
the Governor, from among those holding real estate therein, and who
shall have resided one year, at least, in the said Territory, and hold
no office of profit under the Territory or the United States,” for the
purpose of inserting the words following:
“The Governor shall lay off and divide the territory aforesaid
into twenty-four convenient districts, from each of which
districts there shall be chosen, annually, by the housekeepers
resident therein, two of the most fit and discreet persons, who
shall also be residents therein and landholders, and holding
no office of profit under the territorial government, or that
of the United States, and make a return of their names to
the Governor, out of which number the Governor shall select
twenty-four, to wit, one from each district. But if any of the
districts should refuse or neglect to make such appointment for
one month after the time appointed by the Governor for making
the said elections, he shall then have the power of selecting
from each district, so refusing or neglecting, one fit person
for the purposes aforesaid.”
On this, a division on the question was called for, and that it be taken
on striking out.
Whereupon, the yeas and nays being required by one-fifth of the Senators
present, on striking out, it passed in the negative--yeas 15, nays 14, as
follows:
YEAS.--Messrs. Adams, Anderson, Breckenridge, Cocke, Condit,
Hillhouse, Logan, Maclay, Plumer, John Smith, Stone, Tracy,
Venable, and Worthington.
NAYS.--Messrs. Armstrong, Baldwin, Bradley, Brown, Dayton,
Ellery, Franklin, Jackson, Nicholas, Olcott, Pickering, Potter,
Israel Smith, and Samuel Smith.
THURSDAY, January 26.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof;
and a motion was made to amend the bill, by inserting the following as
section eighth:
“That it shall not be lawful for any person or persons to
import or bring into the said Territory, from any port or place
without the limits of the United States, or to cause or procure
to be so imported or brought, or knowingly to aid or assist
in so importing or bringing any slave or slaves; and every
person so offending, and being thereof convicted, before any
court within the said Territory, having competent jurisdiction,
shall forfeit and pay, for each and every slave so imported or
brought, the sum of ---- dollars, one moiety for the use of the
United States, and the other moiety for the use of the person
who shall sue for the same; and every slave so imported or
brought shall thereupon become entitled to, and receive his or
her freedom.”
Whereupon, a motion was made to amend the amendment by striking out,
after the words “port or place,” the words “without the limits of the
United States,” and insert in lieu thereof, “for sale.”
A division of the question was called for, and that it be taken on
striking out; and, on the question, Shall the words be struck out? it
passed in the negative,--yeas 6, nays 22, as follows:
YEAS.--Messrs. Baldwin, Bradley, Ellery, Jackson, Israel Smith,
and Samuel Smith.
NAYS.--Messrs. Adams, Anderson, Armstrong, Breckenridge, Brown,
Cocke, Condit, Franklin, Hillhouse, Logan, Maclay, Nicholas,
Olcott, Pickering, Plumer, Potter, John Smith, Stone, Venable,
Wells, White, and Worthington.
On motion to agree to the original amendment, it passed in the
affirmative--yeas 21, nays 6, as follows:
YEAS.--Messrs. Anderson, Armstrong, Breckenridge, Brown, Cocke,
Condit, Franklin, Hillhouse, Logan, Maclay, Nicholas, Olcott,
Pickering, Plumer, Potter, John Smith, Stone, Venable, Wells,
White, and Worthington.
NAYS.--Messrs. Adams, Baldwin, Bradley, Ellery, Jackson, and
Israel Smith.
MONDAY, January 30.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof; and
a motion was made to amend the bill, by adding the following to the new
section, adopted as section eighth:
“_And be it further enacted_, That no male person brought into
said Territory of Louisiana, from any parts of the United
States or Territories thereof, or from any province or colony
of America belonging to any foreign Prince or State, after the
---- day of ---- next, ought or can be holden by law to serve
for more than the term of one year, any person as a servant,
slave, or apprentice, after he attains the age of twenty-one
years; nor female in like manner, after she attains the age of
eighteen years, unless they are bound by their own voluntary
act, after they arrive to such age, or bound by law for the
payment of debts, damages, fines, or costs: _Provided_, That
no person held to service or labor in either of the States or
Territories aforesaid, under the laws thereof, escaping into
said Territory of Louisiana, shall, by any thing contained
herein, he discharged from such service or labor, but shall be
delivered up in the manner prescribed by law.”
It passed in the negative--yeas 11, nays 17, as follows:
YEAS.--Messrs. Bradley, Brown, Ellery, Hillhouse, Logan,
Olcott, Plumer, Potter, Israel Smith, Wells, and Worthington.
NAYS.--Messrs. Adams, Anderson, Armstrong, Baldwin,
Breckenridge, Cocke, Condit, Dayton, Franklin, Jackson, Maclay,
Nicholas, Pickering, John Smith, Samuel Smith, Venable, and
White.
A motion was made to amend the bill, by adding to the end of section
eighth, last adopted, the following:
“That it shall not be lawful for any person or persons to
import or bring into the said Territory, from any port or place
within the limits of the United States, or cause to, or procure
to be so imported or brought, or knowingly to aid or assist in
so importing or bringing any slave or slaves, which shall have
been imported since the ---- day of ---- into any port or place
within the limits of the United States, from any port or place
without the limits of the United States; and every person so
offending and being thereof convicted, before any court within
the said Territory having competent jurisdiction, shall forfeit
and pay, for each and every such slave so imported or brought,
the sum of ---- dollars; one moiety for the use of the person
or persons who shall sue for the same. And no slave or slaves
shall directly or indirectly be introduced into said Territory,
except by a person or persons removing into said territory for
actual settlement, and being at the time of such removal _bona
fide_ owner of such slave or slaves; and every slave imported
or brought into the said Territory, contrary to the provisions
of this act, shall thereupon be entitled to and receive his or
her freedom.”
And a division was called for, and that the question be taken on the
first proposition, ending with the words, “sue for the same:” and, on the
question to agree to this first division of the amendment, it passed in
the affirmative--yeas 21, nays 7, as follows:
YEAS.--Messrs. Anderson, Armstrong, Bradley, Breckenridge,
Brown, Cocke, Franklin, Hillhouse, Logan, Maclay, Nicholas,
Olcott, Pickering, Plumer, Potter, I. Smith, John Smith,
Venable, Wells, White, and Worthington.
NAYS.--Messrs. Adams, Baldwin, Condit, Dayton, Ellery, Jackson,
and Samuel Smith.
A motion was made to strike out all that follows the word “and,” in the
second division of the amendment, for the purpose of a further amendment;
and after debate, the consideration of the subject was postponed.
TUESDAY, January 31.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof;
and a motion was made to strike out the last division of the amendment
proposed yesterday, to wit:
“And no slave or slaves shall, directly or indirectly, be
introduced into said Territory except by a person or persons
removing into said Territory for actual settlement, and being,
at the time of such removal, _bona fide_ owner of such slave
or slaves; and every slave imported or brought into the said
Territory, contrary to the provisions of this act, shall,
thereupon, be entitled to, and receive, his or her freedom;”
and to insert the following:
“No slave shall be admitted into the said Territory from the
United States or their Territories, who shall not be the
property of some person _bona fide_ removing from the United
States into the said Territory, and making an actual settlement
therein, or who shall not have passed by descent or devise to
the person or persons claiming the same, and residing within
the said Territory, from some person or persons deceased in
some one of the United States or their Territories; and every
slave who shall be brought into said Territory, otherwise than
is hereby permitted, shall be forfeited, and may be recovered
by any person who shall sue for the same; and the person or
persons offending herein shall moreover forfeit and pay ----
dollars for every slave so brought in, to be recovered by
action of debt in any court having jurisdiction thereof; one
moiety to the use of the United States, and the other moiety to
the use of the person who shall sue for the same. And in any
action instituted for the recovery of the penalty aforesaid,
the person or persons sued may be held to special bail:”
And a division on the question was called for, and that it be taken on
striking out; and, on the question, Shall the words be stricken out? it
passed in the negative--yeas 13, nays 15, as follows:
YEAS.--Messrs. Anderson, Armstrong, Baldwin, Breckenridge,
Cocke, Condit, Jackson, Nicholas, John Smith, Samuel Smith,
Stone, Venable, and Wells.
NAYS.--Messrs. Adams, Bradley, Brown, Ellery, Franklin,
Hillhouse, Logan, Maclay, Olcott, Pickering, Plumer, Potter,
Israel Smith, Worthington, and Wright.
WEDNESDAY, February 1.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana into
two Territories, and providing for the temporary government thereof; and
on motion, to agree to the last division of the amendment proposed on the
30th ultimo, amended as follows:
“And no slave or slaves shall, directly or indirectly, be
introduced into the said Territory except by a citizen of
the United States, removing into said Territory for actual
settlement, and being, at the time of such removal, _bona fide_
owner of such slave or slaves; and every slave imported or
brought into the said Territory, contrary to the provisions of
this act, shall thereupon be entitled to, and receive, his or
her freedom:”
It passed in the affirmative--yeas 18, nays 11, as follows:
YEAS.--Messrs. Armstrong, Bradley, Breckenridge, Brown, Cocke, Condit,
Franklin, Hillhouse, Logan, Maclay, Olcott, Plumer, Potter, S. Smith,
Wells, White, Worthington, and Wright.
NAYS.--Messrs. Adams, Anderson, Baldwin, Dayton, Ellery, Jackson,
Nicholas, Pickering, J. Smith, Stone, and Venable.
THURSDAY, February 2.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana
into two Territories, and making provision for the temporary government
thereof; and on motion to strike out the eighth section of the original
bill, amended as follows:
“SEC. 8. The residue of the province of Louisiana, ceded to
the United States, shall remain under the same name and form
of government as heretofore, save only that the executive
and judicial powers exercised by the former government of
the province shall now be transferred to a Governor, to be
appointed by the President of the United States: and that the
powers exercised by the commandant of a post or district shall
be hereafter vested in a civil officer, to be appointed by the
President in the recess of the Senate, but to be nominated
at the next meeting thereof for their advice and consent;
under the orders of which commandant the officers, troops,
and militia of his station shall be; who, in cases where the
military have been used, under the laws heretofore existing,
shall act by written orders and not in person; and the salary
of the said officers, respectively, shall not exceed the rate
of ---- dollars per annum. The President of the United States,
however, may unite the districts of two or more commandants of
posts into one, where their proximity or ease of intercourse
will permit without injury to the inhabitants thereof. The
Governor shall receive an annual salary of ---- dollars,
payable quarter-yearly at the Treasury of the United States:”
It passed in the affirmative--yeas 16, nays 9, as follows:
YEAS.--Messrs. Adams, Anderson, Armstrong, Breckenridge, Cocke, Condit,
Franklin, Hillhouse, Maclay, Olcott, Pickering, Plumer, J. Smith, Stone,
Venable, and Worthington.
NAYS.--Messrs. Baldwin, Brown, Dayton, Ellery, Jackson, Nicholas, Potter,
S. Smith, and Wright.
TUESDAY, February 7.
_Erection of Louisiana into two Territories._
The Senate resumed the second reading of the bill erecting Louisiana
into two Territories, and making provision for the temporary government
thereof, and agreed to sundry amendments; and on motion to agree to a
further amendment, as follows:
“SEC. 7. All free male white persons, who are housekeepers,
and who shall have resided one year at least in the said
Territory, shall be qualified to serve as grand or petit jurors
in the courts of the said Territory; and they shall, until the
Legislature thereof shall otherwise direct, be selected in such
manner as the judges of the said courts, respectively, shall
prescribe, so as to be most conducive to an impartial trial,
and to be least burdensome to the inhabitants of the said
Territory:”
A motion was made to strike out from the beginning, to the words “and
they,” inclusive, for the purpose of inserting, “persons to serve as
grand and petit jurors in the courts of the said Territory.”
A division of the question was called for, and that it first be taken on
striking out; and on the question, Shall these words be struck out? it
was passed in the negative--yeas 10, nays 18, as follows:
YEAS.--Messrs. Adams, Bradley, Brown, Hillhouse, Logan, Olcott,
Pickering, Plumer, John Smith, and Stone.
NAYS.--Messrs. Anderson, Armstrong, Breckenridge, Baldwin,
Cocke, Condit, Ellery, Franklin, Jackson, Maclay, Nicholas,
Potter, Samuel Smith, Sumter, Venable, Wells, Worthington, and
Wright.
On the question to agree to the original motion, it passed in the
affirmative--yeas 21, nays 7, as follows:
YEAS.--Messrs. Anderson, Armstrong, Breckenridge, Baldwin,
Cocke, Condit, Ellery, Franklin, Jackson, Logan, Maclay,
Nicholas, Potter, Samuel Smith, Stone, Sumter, Venable, Wells,
Worthington, and Wright.
NAYS.--Messrs. Adams, Bradley, Hillhouse, Olcott, Pickering,
Plumer, and John Smith.
FRIDAY, February 17.
_Erection of Louisiana into two Territories._
The Senate resumed the third reading of the bill erecting Louisiana
into two Territories, and making provision for the temporary government
thereof; and on motion to amend the bill, by striking out of section
10th, the words:
“And no slave or slaves shall, directly or indirectly, be
introduced into said Territory, except by a citizen of
the United States removing into said Territory for actual
settlement, and being at the time of such removal _bona fide_
owner of such slave or slaves:”
It passed in the negative--yeas 9, nays 19, as follows:
YEAS.--Messrs. Anderson, Baldwin, Cocke, Dayton, Nicholas, John
Smith, Stone, Venable, and Wright.
NAYS.--Messrs. Armstrong, Bradley, Breckenridge, Brown, Condit,
Ellery, Franklin, Hillhouse, Jackson, Logan, Maclay, Olcott,
Plumer, Potter, Israel Smith, Samuel Smith, Sumter, Wells, and
White.
On motion to expunge from the same section, after the word “slaves,” the
words “and every slave imported or brought into said Territory, contrary
to the provisions of this act, shall thereupon be entitled to and receive
his or her freedom:”
It passed in the negative--yeas 11, nays 17, as follows:
YEAS.--Messrs. Anderson, Armstrong, Baldwin, Breckenridge,
Cocke, Dayton, Jackson, Nicholas, Stone, Sumter, and Venable.
NAYS.--Messrs. Bradley, Brown, Condit, Ellery, Franklin,
Hillhouse, Logan, Maclay, Olcott, Plumer, Potter, Israel Smith,
John Smith, Samuel Smith, Wells, White, and Wright.
On motion to insert, in the same section, line 3d, after the word
“States,” the words “or from any State authorizing the importation of
slaves from any foreign port or place:”
It passed in the negative--yeas 8, nays 13, as follows:
YEAS.--Messrs. Brown, Hillhouse, Logan, Olcott, Plumer, John
Smith, White, and Wright.
NAYS.--Messrs. Anderson, Armstrong, Baldwin, Bradley,
Breckenridge, Cocke, Condit, Dayton, Ellery, Franklin, Jackson,
Maclay, Nicholas, Potter, Israel Smith, Samuel Smith, Sumter,
and Venable.
And having further amended the bill, and filled the blanks, it was agreed
that the question on its final passage be postponed until to-morrow.
SATURDAY, February 18.
_Erection of Louisiana into two Territories._
The Senate resumed the third reading of the bill erecting Louisiana
into two Territories, and making provision for the temporary government
thereof; and on the question to agree to the final passage of this bill,
it was determined in the affirmative--yeas 20, nays 5, as follows:
YEAS.--Messrs. Anderson, Armstrong, Baldwin, Bradley,
Breckenridge, Brown, Cocke, Condit, Ellery, Franklin, Jackson,
Logan, Maclay, Nicholas, Potter, John Smith, Samuel Smith,
Sumter, Venable, and Wright.
NAYS.--Messrs. Adams, Hillhouse, Olcott, Plumer, and Stone.
So it was _Resolved_, That this bill pass, that it be engrossed, and that
the title thereof be “An act erecting Louisiana into two Territories, and
making provision for the temporary government thereof.”[6]
THURSDAY, February 23.
JOHN SMITH, appointed a Senator by the Legislature of the State of New
York, in the room of De Witt Clinton, took his seat in the Senate,
and his credentials were read, and the oath prescribed by law was
administered to him by the President.
FRIDAY, February 24.
Agreeably to the resolution of yesterday, the Senate proceeded to elect
a doorkeeper, or assistant to James Mathers, Sergeant-at-Arms; and Henry
Timms was appointed.
SATURDAY, February 25.
JOHN ARMSTRONG, appointed a Senator by the Legislature of the State of
New York, in the room of Theodorus Bailey, took his seat in the Senate,
and his credentials were read, and the oath prescribed by law was
administered to him by the President.
SATURDAY, March 10.
_Election of President of the Senate, pro tem._
The VICE PRESIDENT being absent, the Senate proceeded to the election
of a President _pro tempore_, as the constitution prescribes, and the
ballots having been collected and counted, a majority thereof was for the
Honorable JESSE FRANKLIN, who was accordingly elected President of the
Senate _pro tempore_.
_Ordered_, That the Secretary wait on the President of the United States,
and acquaint him that the Senate have, in the absence of the VICE
PRESIDENT, elected the honorable JESSE FRANKLIN President of the Senate
_pro tempore_.
_Ordered_, That the Secretary make a like communication to the House of
Representatives.
TUESDAY, March 13.
_Impeachment of Judge Chase._
A message from the House of Representatives, by Messrs. J. RANDOLPH and
EARLY, two of their members, was received, as follows:
“_Mr. President_: We are ordered, in the name of the House of
Representatives and of all the People of the United States, to impeach
Samuel Chase, one of the Associate Justices of the Supreme Court of the
United States, of high crimes and misdemeanors; and to acquaint the
Senate that the House of Representatives will, in due time, exhibit
particular articles of impeachment against him, and make good the same.
“We are also ordered to demand that the Senate take order for the
appearance of the said Samuel Chase, to answer to the said impeachment.”
_Turnpike Road to the Ohio._
The Senate took into consideration the amendment reported by the
committee to the bill, entitled “An act authorizing the appointment of
Commissioners to explore the routes most eligible for opening certain
public roads;” and on the question to agree to the said amendment, as
follows:
Strike out, in the first section, after the word “proceed,” in the fourth
line, to the word “and,” in the seventh line, and insert, “to explore and
designate the most eligible route for a turnpike road, to lead from Fort
Cumberland, on the Potomac, to Wheeling, on the Ohio.”
It passed in the negative--yeas 13, nays 15, as follows:
YEAS.--Messrs. Anderson, Breckenridge, Cocke, Dayton, Franklin,
Pickering, Israel Smith, John Smith of Ohio, Samuel Smith,
Stone, Sumter, Worthington, and Wright.
NAYS.--Messrs. Adams, Armstrong, Baldwin, Bradley, Ellery,
Hillhouse, Jackson, Logan, Maclay, Nicholas, Olcott, Plumer,
John Smith of New York, Venable, and White.
_Ordered_, That the bill be recommitted, and that Messrs. NICHOLAS,
WORTHINGTON, and DAYTON be the committee further to consider and report
thereon to the Senate.
WEDNESDAY, March 14.
_Impeachment of Judge Chase._
Mr. BALDWIN, from the committee to whom yesterday was referred the
message from the House of Representatives relative to the impeachment of
Samuel Chase, made report; which was read and adopted, as follows:
“Whereas, the House of Representatives, on the 13th day of the
present month, by two of their members, Messrs. John Randolph
and Early, at the bar of the Senate, impeached Samuel Chase,
one of the Associate Justices of the Supreme Court of the
United States, of high crimes and misdemeanors, and acquainted
the Senate that the House of Representatives will, in due time,
exhibit particular articles of impeachment against him, and
make good the same;
“And likewise demanded that the Senate take order for the
appearance of the said Samuel Chase to answer to the said
impeachment. Therefore,
“_Resolved_, That the Senate will take proper order
thereon, of which due notice shall be given to the House of
Representatives.”
_Resolved_, That the Secretary of the Senate notify the House
of this resolution.
MONDAY, March 19.
_Post Roads in States._
The Senate resumed the third reading of the bill, entitled “An act to
alter and establish certain post roads.”
On motion, to add the following after section third:
“_And be it further enacted_, That two post roads shall be laid
out, under the inspection of commissioners to be appointed by
the President of the United States, one to lead from Tellico
block-house, in the State of Tennessee, and the other from
Jackson court-house, in the State of Georgia, by routes the
most eligible, and as nearly direct as the nature of the ground
will admit, to New Orleans.”
It passed in the affirmative--yeas 17, nays 10, as follows:
YEAS.--Messrs. Anderson, Armstrong, Baldwin, Breckenridge,
Cocke, Dayton, Franklin, Jackson, Maclay, Nicholas, John Smith
of Ohio, John Smith of New York, Samuel Smith, Stone, Sumter,
Venable, and Worthington.
NAYS.--Messrs. Adams, Bradley, Hillhouse, Logan, Olcott,
Pickering, Plumer, Israel Smith, Tracy, and White.
And, sundry other amendments having been agreed to,
_Resolved_, That this bill do pass as amended.
_Seat of Government._
The bill for the temporary removal of the seat of Government of the
United States to the city of Baltimore was taken up for its second
reading.
[The debate which took place on this occasion, had progressed to some
length before the reporter entered the House. Mr. WRIGHT was then on the
floor, and had made a motion to postpone the further consideration of the
bill until the first Monday in May.]
Mr. W. assigned as reasons for this motion, that it was not his intention
in presenting the bill, that it should pass; but that it had been offered
with the view of acting as a spur to the inhabitants of Washington to
effect a more complete accommodation of Congress. He trusted and believed
it would have that effect; and the operation of the postponement would,
by hanging the bill over their heads, most powerfully tend to produce the
desirable result of a concentration of the city, and an augmentation of
accommodation.
Mr. JACKSON followed, and, in terms of appropriate energy, condemned
the proposition of removal. He said he should not have believed, but for
the express declaration of the gentleman from Maryland, that he would
have brought forward a bill the sole object of which was to frighten the
women and children of Washington. So far from the measure having the
desired effect avowed by the gentleman, if it had any effect whatever, it
would be to shake all confidence in the Government, to repress the very
accommodation desired.
Mr. J. denied the moral right of Congress to remove the seat of
Government; it had been fixed under the constitution, and without its
violation could not be changed.
Such a measure would indicate a prostration of plighted faith; would
destroy all confidence in the Government, from one end of the continent
to the other.
Gentlemen, in favor of this measure, should know its cost. Already had
the present seat of Government, in its origination and consequences, cost
the nation the assumption of the State debts to the amount of twenty-one
millions, and between one and two millions for public accommodation.
Would gentlemen be willing not only to lose all that had been expended,
but likewise to indemnify the proprietors in the city, whose assessed
property amounted to two and a half millions of dollars, and the
proprietors of property in the whole District, the amount of which he was
unable to state?
Mr. J. concluded by saying, he should vote against the postponement,
under the expectation that the Senate would take up the bill and reject
it by a majority so great, that no similar proposition should ever again
be brought before them.
Mr. ANDERSON declared himself hostile to the postponement, as he was
in favor of the passage of the bill, under certain modifications. He
considered Congress possessed the constitutional power of altering
the seat of Government; and he believed, from an experience of the
inconveniences attending the existing seat, it was their duty to change
it. He allowed that, in such an event, an obligation would arise to
indemnify the proprietors for the losses they would thereby sustain.
This, however, he considered the lesser evil; as the sum required to
make an indemnity would be less than that required for the improvements
contemplated, and which are necessary to accommodate the Government.
Mr. COCKE declared himself decidedly inimical to the bill. The permanent
seat of Government was fixed under the constitution, and the power did
not belong to Congress to alter it.
Mr. ADAMS strenuously contended against the right of Congress to
remove the seat of Government. To do so, would be to prostrate the
national faith, and to shake the confidence of the nation in the
Government. He considered the proposed measure as inexpedient as it was
unconstitutional; as it tended directly to defeat the object of the mover.
Mr. S. SMITH said, he should vote in favor of the postponement, because
he believed, if the bill were not postponed, it would consume more time
than could, at this late period of the session, be spared, without a
serious neglect of important business before Congress. He expressed his
regret at its introduction.
The question was then taken on the motion of postponement, and decided in
the negative--yeas 3, nays 24, as follows:
YEAS.--Messrs. I. Smith, S. Smith, and Wright.
NAYS.--Messrs. Adams, Anderson, Armstrong, Baldwin, Bradley,
Breckenridge, Cocke, Dayton, Franklin, Jackson, Logan, Maclay,
Nicholas, Olcott, Pickering, Plumer, John Smith of Ohio, John
Smith of New York, Stone, Sumter, Tracy, Venable, White, and
Worthington.
The bill was then read a second time.
Mr. DAYTON said, he had been instructed by the Legislature of New
Jersey, in case any prospect presented itself of a removal of the seat
of Government, to offer, in their name, the public buildings in Trenton
for their accommodation. He, therefore, gave notice that, in case the
bill went to a third reading, he should produce his instructions, and
move the substitution of Trenton in the room of Baltimore. At the same
time, he was free to declare his opinion of the impolicy of the proposed
measure. The provision of the constitution had arisen from an experience
of the necessity of establishing a permanent seat for the Government. To
avert the evils arising from a perpetual state of mutation, and from the
agitation of the public mind whenever it is discussed, the constitution
had wisely provided for the establishment of a permanent seat, vesting
in Congress exclusive legislation over it. While he declared this as his
creed, he begged it to be understood that there were, in his opinion,
some rightful grounds of removal. There were four such, two of which
were the following: if the place should be found a grave-yard for those
who resided in it, or if the inconveniences of conducting the machine of
government should be so great as to prevent the due transaction of the
public business. For the existence of these, no fault could be attached
to the District. If, therefore, a removal took place on their account,
Congress were bound to indemnify the proprietors. There were two other
grounds of removal, which would justify a removal without indemnity, as
they would be the effect of the misconduct of the inhabitants of the
District. These were, the evidence of a turbulent spirit, endangering
the safety of Congress, and of a determined resolution, arising from a
dissatisfaction which the Government or Congress expressed in favor of a
recession.
When he stated these grounds for removal, Mr. D. said, it was not from
any apprehension of their occurrence. On the contrary, he believed the
Government in perfect safety, and he was convinced, if any hostile arm
should be raised against it, the inhabitants of Columbia would be ready
to shed their blood in its defence.
Nothing could exceed his surprise at the motives expressed by the
gentleman from Maryland for bringing forward this measure. He should
have expected, if the gentleman wished to promote the interests of the
city, he would have imitated the example of the Athenians, who, in order
to make a particular fund devoted to theatrical exhibitions sacred, had
passed a law punishing with death any man who should move to divert it
from its allotted purpose; and that the honorable gentleman, instead of
bringing forward this bill, would have introduced one punishing with
death the man who should move a change of the seat of Government; so that
he who made the attempt might know that he did it with a halter around
his neck.
Mr. MACLAY moved to strike out the words “Baltimore,” and “Maryland,” in
the first section.
Motion agreed to--ayes 14, noes 10.
Mr. M. then observed, that he would concisely state the ideas which
influenced him on this subject. For the existing inconveniences of this
place, and the want of accommodation to which Congress was exposed, he
did not consider the inhabitants of Washington in the least to blame. The
causes from which these flowed, it was not in their power to control.
They arose, in a great measure, from the city being surrounded by seats
of trade, which naturally repressed its rise here. Those inconveniences
were, he believed, of a nature not to be cured by time, and, if there
was no constitutional obstacle, it would be the best policy to remove
immediately. He contended that no constitutional obstacle did exist. On
the contrary, he was of opinion that it was the duty of the Legislature,
in case the public good required it, to remove the seat of Government.
He believed that this place would not long remain the seat. The members
of the Government will become tired of remaining here, when they are
convinced that the inconveniences which they experience will not
promote the advantage even of their posterity. The single question then
is, whether less inconvenience will be produced by an immediate or a
protracted removal. He was clearly of opinion that the inconvenience of
removing, at this time, would be less than at a future day. He concluded
by saying, that he should not, himself, have brought forward this measure
at the present time. He would have waited for more conclusive proofs of
the insuperable inconveniences attending a residence at this place, when
opinions, at present variant, would be more united.
Mr. JACKSON said, the gentleman from Pennsylvania (Mr. MACLAY) had picked
a hole in the bill, and what effect it would produce, he could not
pretend to say. If the word “Baltimore” had been suffered to remain, it
would have been rejected by a large majority.
Mr. J. then went at some length into a view of the unconstitutionality
of a removal, and the happy situation of Washington for the seat of the
Government. He said that he was far from being friendly, in the first
instance, to this measure, which might be called the hobby-horse of,
perhaps, the most illustrious man that ever lived. But, once adopted, it
became sacred in his eyes; and nothing short of an act of God, in the
shape of an earthquake, a plague, or some other fatal scourge, would
justify a removal; and, he trusted, that unless some such act occurred,
this would be the last time the measure was proposed.
The time would come, though he hoped to God neither his children nor
his children’s children would live to see it, when the population on
this side of the Mississippi would pass that river, and when the seat of
Government would be translated to its banks. Centuries would, however,
elapse before that period arrived.
Mr. ANDERSON said, there was no such word in the constitution as
“permanent,” applied to the seat of Government; nor did the constitution
prohibit the removal of it when the public interest should require it.
Believing that such would be the experience of the inconveniences of the
place, that Congress would certainly remove within five years, he was for
taking that step now. The ill accommodation of the place was manifest to
every man; nor did he believe that time would cure the evil. Such losses,
however, as should be sustained by the proprietors, he was ready to
remunerate. This was the least expensive course which could be pursued,
as to make the necessary improvements in this place will require at least
the annual sum of fifty thousand dollars for twenty years to come, and at
least thirty thousand dollars a year to keep the public buildings in a
state of repair. In addition to this immense expense was to be added, the
great loss of time which arose from the inconvenient arrangements of the
place, and the consequent expenditure of public money. For these reasons,
Mr. A. said, he should give a decided vote in favor of the bill.
Mr. JACKSON remarked, that the gentleman from Tennessee ought, in forming
his opinion of the constitutionality of removing the seat of Government,
to attend as well to the laws passed by Congress on the subject, as
to the provisions of the constitution itself. [Mr. J. here read the
article of the constitution on the subject.] He said that, according
to the rigid construction of this provision, it excluded altogether a
_temporary_ seat, after this part of the constitution was carried into
effect. Under this constitutional provision, Congress passed an act on
the 6th of July, 1790, not more than a year and a half after the first
meeting of the Legislature, and when many of the members of that body
had been members of the convention, and might, therefore, be presumed to
be the best acquainted with the true meaning of the constitution. This
act fixed a temporary and a permanent seat of Government. [Mr. J. read
it.] He then asked, can any thing be more clear and explicit? Does it not
show, in terms of unequivocal meaning, that it was the opinion of the men
best qualified to decide, that the seat of Government, once fixed under
the provision of the constitution, must be permanent? It was not then
imagined that the Government ought to be travelling about from post to
pillar, according to the prevalence of this or that party or faction. All
the ideas of that day were hostile to this wheelbarrow kind of Government.
Mr. WRIGHT contended that, while the constitution had sacredly and
irrevocably fixed the permanent seat of Government in this place,
Congress might make some other place the temporary seat.
Mr. ANDERSON said, that all that the law passed by Congress proved was,
that Congress, and not the constitution, had declared this place the
permanent seat. This law, like other laws, was subject to repeal.
Mr. ADAMS wished, on this subject, to be explicit. He asked what was the
meaning of the article of the constitution on this point, and all the
laws of Congress passed under it? From the formation of the constitution
until the removal of the Government to this place, but one sentiment
had existed, which was, that the seat of the Government once fixed
under the constitution, became the permanent seat. As to the idea of
the gentleman from Maryland, who says this is the permanent seat while
Congress are going from one place to another, he could not understand it.
The constitution says, the place fixed on by Congress, on the cession
of jurisdiction by the States, shall be the seat of Government. The
idea of a temporary seat implies, necessarily, two seats of Government.
But the expression in the constitution is “seat,” and that implies only
one seat. The reason of this provision of the constitution is obvious.
As the gentleman from Georgia has very justly observed, the Government
had been driven from post to pillar. The question, what place should be
the seat of Government, had never presented itself without enkindling
violent feelings; and it was supposed that the question would continue to
distract our public councils, until some permanent seat of Government was
fixed. To carry this into effect, the constitution interposed, and said,
ten miles square shall be given to Congress, where their power shall
be sovereign, and that shall be the seat of Government. Why give this
exclusive legislation, if their residence is not to be permanent? Would
it not be the acme of the ridiculous, for Congress to go to Philadelphia,
and still continue to exercise exclusive legislation here? Let us now
turn to the acts of Congress, and the proceedings had under them. [Mr.
A. here read the act of Congress fixing the seat of Government.] It will
appear that it was the intention of Congress that this should be the
permanent seat of the Government, from the public buildings erected. Thus
much as to the understanding of the Government. Now, as to the meaning
of Maryland and Virginia, who gave up the territory, and also gave
considerable sums of money for its improvement. Could this have possibly
been done under the contemplation that Congress would come here, and,
after staying three or four years, run off to different quarters of the
Union?
Now then, after this uniform opinion, entertained by Congress, by the
States of Maryland and Virginia, and by every man who has expressed an
opinion on the subject, until within a few years past, are we to be told
that it is possible to give a different construction to the constitution?
If any thing can fix a meaning to words, every thing which has occurred
to this day, unites to decide this the permanent seat of the Government.
These, said Mr. A., are my ideas. On the ground of expediency, if it were
admitted as applicable to the present question, I would not undertake
to say whether this is the most proper place for the residence of the
Government. Nor will I say that Congress could not, consistently, remove
in consequence of an act of God; that implies force, to which all human
institutions must give way. But, say gentlemen, if we remove, we must
indemnify the proprietors. But why indemnify if the constitution does not
make this the permanent seat of Government, as it has been understood to
be by every body until this day? Where is the propriety of indemnifying
the holders of property here, if this is not the permanent seat, more
than proprietors in Philadelphia or New York, where Congress formerly
met? This very argument, urged by the advocates of the bill, shows that
the constitution has made this the permanent seat. As to the idea of
some gentlemen, of granting millions for an indemnity, the thing is
impossible; it cannot be done; the people will not suffer it.
Mr. DAYTON replied to some of the remarks made in the course of
the debate, principally for the purpose of explaining his previous
observations.
When the question was taken, on ordering the bill to a third reading, and
passed in the negative--yeas 9, nays 19, as follows:
YEAS.--Messrs. Anderson, Armstrong, Breckenridge, Bradley,
Maclay, Plumer, Stone, Tracy, and Worthington.
NAYS.--Messrs. Adams, Baldwin, Cocke, Dayton, Franklin,
Hillhouse, Jackson, Logan, Nicholas, Olcott, Pickering, I.
Smith, S. Smith, J. Smith of Ohio, J. Smith of New York,
Sumter, Venable, White, and Wright.
So the bill was lost.
TUESDAY, March 20.
_Wreck and Capture of the Frigate Philadelphia._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
I communicate to Congress a letter from Captain Bainbridge,
commander of the Philadelphia frigate, informing us of the
wreck of that vessel on the coast of Tripoli, and that himself,
his officers, and men, had fallen into the hands of the
Tripolitans. This accident renders it expedient to increase
our force and enlarge our expenses in the Mediterranean
beyond what the last appropriation contemplated. I recommend,
therefore, to the consideration of Congress, such an addition
to that appropriation as they may think the exigency requires.
TH. JEFFERSON.
MARCH 20, 1804.
The Message and papers therein referred to were read, and ordered to lie
for consideration.
TUESDAY, March 27.
_Adjournment._
A message from the House of Representatives informed the Senate that the
House, having finished the business before them, are about to adjourn to
the first Monday in November next.
The PRESIDENT then adjourned the Senate to the first Monday in November
next.
EIGHTH CONGRESS.--FIRST SESSION.
PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.
LIST OF REPRESENTATIVES.
_New Hampshire._--Silas Betton, Clifton Claggett, David Hough, Samuel
Hunt, Samuel Tenney.
_Vermont._--William Chamberlain, M. Chittenden, James Elliot, Gideon Olin.
_Massachusetts._--Phanuel Bishop, Jacob Crowninshield, Manasseh Cutler,
Richard Cutts, Thomas Dwight, William Eustis, Seth Hastings, Simeon
Larned, Silas Lee, Nahum Mitchell, Eben. Seaver, Tompson J. Skinner,
William Stedman, Samuel Taggart, Samuel Thatcher, Joseph B. Varnum, P.
Wadsworth, Lemuel Williams.
_Rhode Island._--Nehemiah Knight, Joseph Stanton.
_Connecticut._--Simeon Baldwin, Samuel W. Dana, John Davenport, Calvin
Goddard, Roger Griswold, John C. Smith, Benjamin Tallmadge.
_New York._--George Clinton, George Griswold, Josiah Hasbrouck, H. W.
Livingston, Andrew McCord, Samuel L. Mitchill, Beriah Palmer, John
Patterson, Oliver Phelps, Samuel Riker, Erastus Root, Peter Sailly,
Thomas Sammons, Joshua Sands, David Thomas, George Tibbits, Philip Van
Cortlandt, Killian K. Van Rensselaer, Daniel C. Verplanck.
_New Jersey._--Adam Boyd, Ebenezer Elmer, William Helms, James Mott,
James Sloan, Henry Southard.
_Pennsylvania._--Isaac Anderson, David Bard, Robt. Brown, Thomas Bonde,
Joseph Clay, Frederick Conrad, Wm. Findlay, Andrew Gregg, John A. Hanna,
Joseph Heister, John Hoge, Michael Leib, John B. Lucas, Jno. Rea, Jacob
Richards, John Smilie, John Stewart, Isaac Van Horne, John Whitehill.
_Delaware._--Cæsar A. Rodney.
_Maryland._--John Archer, Walter Bowie, John Campbell, John Dennis,
William McCreery, Nicholas E. Moore, Joseph H. Nicholson, Thomas Plater.
_Virginia._--Thomas Claiborne, Matthew Clay, John Clopton, John Dawson,
John W. Eppes, Edwin Gray, Thomas Griffin, David Holmes, John Geo.
Jackson, Walter Jones, Joseph Lewis, Andrew Moore, Anthony New, Thomas
Newton, John Randolph, Thomas M. Randolph, John Smith, James Stephenson,
Philip R. Thompson, Abram Trigg, Alexander Wilson.
_North Carolina._--N. Alexander, Willis Alston, jr., Wm. S. Blackledge,
James Gillespie, James Holland, William Kennedy, Nathaniel Macon, Samuel
D. Purviance, Richard Stanford, Marmaduke Williams, Joseph Winston,
Thomas Wynns.
_South Carolina._--William Butler, Levi Casey, John B. Earle, Wade
Hampton, Benjamin Huger, Thomas Lowndes, Thomas Moore, Richard Wynn.
_Georgia._--Joseph Bryan, Peter Early, Samuel Hammond, Daniel Meriwether.
_Mississippi._--William Lattimore.
_Tennessee._--G. W. Campbell, Wm. Dickson, John Rhea.
_Kentucky._--Geo. M. Bedinger, John Boyle, John Fowler, Matthew Lyon,
Thomas Sanford, Matthew Walton.
_Ohio._--Jeremiah Morrow.
MONDAY, October 17, 1803.
This being the day appointed by a Proclamation of the President of
the United States, of the sixteenth of July last, for the meeting of
Congress, the following members of the House of Representatives appeared,
produced their credentials, and took their seats, to wit:
_From New Hampshire_--Silas Betton, Clifton Claggett, David Hough,
Samuel Hunt, and Samuel Tenney.
_From Massachusetts_--Phanuel Bishop, Manasseh Cutler, Jacob
Crowninshield, Richard Cutts, Thomas Dwight, William Eustis, Seth
Hastings, Nahum Mitchell, Ebenezer Seaver, William Stedman, Samuel
Taggart, Joseph B. Varnum, Peleg Wadsworth, and Lemuel Williams.
_From Rhode Island_--Nehemiah Knight, and Joseph Stanton.
_From Connecticut_--Samuel W. Dana, John Davenport, Calvin Goddard, Roger
Griswold, and John C. Smith.
_From Vermont_--William Chamberlin, Martin Chittenden, James Elliot, and
Gideon Olin.
_From New York_--Gaylord Griswold, Josiah Hasbrouck, Henry W. Livingston,
Andrew McCord, Samuel L. Mitchill, Beriah Palmer, Thomas Sammons, Joshua
Sands, David Thomas, Philip Van Cortlandt, and Daniel C. Verplanck.
_From Pennsylvania_--Isaac Anderson, David Bard, Robert Brown, Joseph
Clay, Frederick Conrad, William Findlay, Andrew Gregg, John A. Hanna,
Joseph Heister, William Hoge, Michael Leib, John Rea, Jacob Richards,
John Smilie, John Stewart, Isaac Van Horne, and John Whitehill.
_From Delaware_--Cæsar A. Rodney.
_From Maryland_--John Campbell, Wm. McCreery, Nicholas R. Moore, Joseph
H. Nicholson, and Thomas Plater.
_From Virginia_--Thomas Claiborne, Matthew Clay, John Dawson, John W.
Eppes, Peterson Goodwyn, Edwin Gray, Thomas Griffin, David Holmes, John
G. Jackson, Walter Jones, Joseph Lewis, jun., Thomas Lewis, Anthony New,
Thomas Newton, jun., John Randolph, jun., Thomas M. Randolph, John Smith,
James Stephenson, and Philip R. Thompson.
_From Kentucky_--George Michael Bedinger, John Boyle, John Fowler,
Matthew Lyon, Thomas Sanford, and Matthew Walton.
_From North Carolina_--Nathaniel Alexander, Willis Alston, jun., William
Blackledge, James Holland, William Kennedy, Nathaniel Macon, Richard
Stanford, Marmaduke Williams, Joseph Winston, and Thomas Wynns.
_From Tennessee_--George Washington Campbell, William Dickson, and John
Rhea.
_From South Carolina_--William Butler, Levi Casey, John Earle, Wade
Hampton, Benjamin Huger, Thomas Moore, and Richard Winn.
_From Ohio_--Jeremiah Morrow.
And a quorum, consisting of a majority of the whole number, being
present, the House proceeded, by ballot, to the choice of a Speaker; and
upon examining the ballots, a majority of the votes of the whole House
was found to be in favor of NATHANIEL MACON, one of the Representatives
from the State of North Carolina: Whereupon, Mr. MACON was conducted
to the chair, from whence he made his acknowledgments to the House, as
follows:
“_Gentlemen_: Accept my unfeigned thanks for the honor which
you have conferred on me. The task which you have assigned
me will be undertaken with great diffidence, but my utmost
endeavors shall be exerted to discharge the duties of the Chair
with fidelity. In executing the rules and orders of the House,
I shall rely with confidence on the liberal and candid support
of the House.”
The House proceeded, in the same manner, to the appointment of a Clerk;
and upon examining the ballots, a majority of the votes of the whole
House was found in favor of JOHN BECKLEY.
The oath to support the Constitution of the United States, as prescribed
by the act entitled “An act to regulate the time and manner of
administering certain oaths,” was administered by Mr. NICHOLSON, one of
the Representatives from the State of Maryland, to the SPEAKER; and then
the same oath or affirmation was administered by Mr. SPEAKER to all the
members present.
WILLIAM LATTIMORE having also appeared, as the Delegate from the
Mississippi Territory, the said oath was administered to him by the
SPEAKER.
The same oath, together with the oath of office prescribed by the said
recited act, was also administered by Mr. SPEAKER to the Clerk.
_Ordered_, That a message be sent to the Senate, to inform them that a
quorum of this House is assembled, and have elected NATHANIEL MACON, one
of the Representatives for North Carolina, their Speaker; and that the
Clerk of this House do go with the said message.
A message from the Senate informed the House that a quorum of the Senate
is assembled, and ready to proceed to business; and that, in the absence
of the VICE PRESIDENT of the United States, the Senate have elected the
Honorable JOHN BROWN their President, _pro tempore_.
_Resolved_, That Mr. J. RANDOLPH, jun., Mr. R. GRISWOLD, and Mr.
NICHOLSON, be appointed a committee on the part of this House, jointly,
with such committee as may be appointed on the part of the Senate, to
wait on the President of the United States, and inform him that a quorum
of the two Houses is assembled, and ready to receive any communications
he may be pleased to make to them.
A message from the Senate informed the House that the Senate have
appointed a committee on their part, jointly, with the committee
appointed on the part of this House, to wait on the President of the
United States, and inform him that a quorum of the two Houses is
assembled, and ready to receive any communications he may be pleased to
make to them.
_Resolved_, That unless otherwise ordered, the daily hour to which the
House shall stand adjourned, during the present session, be eleven
o’clock in the forenoon.
Mr. JOHN RANDOLPH, Jr., from the joint committee appointed to wait on the
President of the United States, and notify him that a quorum of the two
Houses is assembled, and ready to receive any communication he may be
pleased to make to them, reported that the committee had performed that
service, and that the President had signified to them that he would make
a communication to this House, to-day, in writing.
A communication was received from the PRESIDENT OF THE UNITED STATES to
the two Houses of Congress. The said communication was read, and referred
to the committee of the whole House on the state of the Union. [See
Senate proceedings of this date, for the Message, _ante_ page 4.]
TUESDAY, October 18.
Several other members, to wit: from Pennsylvania, JOHN B. C. LUCAS;
from Maryland, DANIEL HEISTER; from Virginia, JOHN CLOPTON, and JOHN
TRIGG; from North Carolina, SAMUEL D. PURVIANCE; and from Georgia, DAVID
MERIWETHER, appeared, produced their credentials, were qualified, and
took their seats in the House;
_President’s Message._
The House resolved itself into a Committee of the Whole on the state of
the Union; and, after some time spent therein, the Committee rose and
reported the following resolutions:
1. _Resolved_, That so much of the President’s Message as
relates to the regulations proper to be observed by foreign
armed vessels within the jurisdiction of the United States; to
the restraining of our citizens from entering into the service
of the belligerent powers of Europe; and to the exacting from
all nations the observance, towards our vessels and citizens,
of those principles and practices which all civilized people
acknowledge; be referred to a select committee.
2. _Resolved_, That so much of the President’s Message as
relates to the adopting of measures for preventing the flag
of the United States from being used by vessels not really
American, be referred to the Committee of Commerce and
Manufactures.
3. _Resolved_, as the opinion of this committee, That so much
of the Message of the President of the United States as relates
to our finances, ought to be referred to the Committee of Ways
and Means.
The House proceeded to consider the said resolutions, and the same being
again read, were agreed to by the House.
_Ordered_, That Mr. JOHN RANDOLPH, jr., Mr. NICHOLAS R. MOORE, Mr.
GAYLORD GRISWOLD, Mr. CROWNINSHIELD, Mr. BLACKLEDGE, Mr. RODNEY, and Mr.
JOHN RHEA, of Tennessee, be appointed a committee pursuant to the first
resolution.
WEDNESDAY, October 19.
Another member, to wit, PETER EARLY, from Georgia, appeared, produced his
credentials, was qualified, and took his seat in the House.
_Mourning for Samuel Adams._
Mr. J. RANDOLPH observed that it had lately been announced to the public
that one of the earliest patriots of the Revolution had paid his last
debt to nature. He had hoped that some other gentleman, better qualified
for the task, would have undertaken to call the attention of the House to
this interesting event. It could not, indeed, be a matter of deep regret
that one of the first statesmen of our country has descended to the grave
full of years and full of honors; that his character and fame were put
beyond the reach of that time and chance to which every thing mortal is
exposed; but it became the House to cherish a sentiment of veneration for
such men--since such men are rare--and to keep alive the spirit to which
they owed the constitution under which they were then deliberating. This
great man, the associate of Hancock, shared with him the honor of being
proscribed by a flagitious ministry, whose object was to triumph over the
liberties of their country, by trampling on those of her colonies. With
his great compatriot he made an early and decided stand against British
encroachment, whilst souls more timid were trembling and irresolute. It
is the glorious privilege of minds of this stamp to give an impulse to a
people and fix the destiny of nations.
Mr. R. said, that he felt himself every way unequal to the attempt of
doing justice to the merits of their departed countryman. Called upon by
the occasion to say something, he could not have said less. He would not,
by any poor eulogium of his, enfeeble the sentiment which pervaded the
House, but content himself with moving the following resolution:
_Resolved, unanimously_, That this House is penetrated with a
full sense of the eminent services rendered to his country in
the most arduous times by the late Samuel Adams, deceased; and
that the members thereof wear crape on the left arm for one
month, in testimony of the national gratitude and reverence
towards the memory of that undaunted and illustrious patriot.
Mr. ELLIOTT spoke as follows:
Mr. Speaker: If any apology could be necessary for a new member,
unversed in Parliamentary proceedings, to offer for rising so early in
the session, it would be, that the topic which arrests his attention is
connected with the illustrious and ever memorable name of Samuel Adams.
The eloquence of the gentleman from Virginia I shall not attempt to
rival; his remarks were peculiarly impressive, and the more so from
his remarking that he was unable to do justice to the subject. I have
been extremely affected by his calling the attention of the House to
the circumstance that the name of that patriot was united with that
of John Hancock, in an exemption from the general pardon which the
British Government offered to those American revolutionists, whom they
dared to style rebels. The longer I should address the House upon this
subject, the more feeble would be my language, as the greater would be my
sensibility. I shall, therefore, only further observe, that I shall most
cordially support the motion of the gentleman from Virginia.
The question was then taken up on Mr. RANDOLPH’s motion: which was agreed
to unanimously.
Mr. NICHOLSON observed that, on occasions like the present, it had been
usual for the House to adjourn. He, therefore, moved an adjournment;
which was carried.
THURSDAY, October 20.
Several other members, to wit: from Massachusetts, SAMUEL THATCHER; from
New York, JOHN SMITH; and from Maryland, JOHN ARCHER, appeared, produced
their credentials, were qualified, and took their seats in the House.
The House then proceeded, by ballot, to the appointment of a Chaplain to
Congress, on the part of this House; and, upon examining the ballots, a
majority of the votes of the whole House was found in favor of the Rev.
WILLIAM PARKINSON.
FRIDAY, October 21.
Two other members, to wit: from New York, JOHN PATTERSON and ERASTUS
ROOT, appeared, produced their credentials, and took their seats in the
House.
_Resolved_, That the resolution of the tenth of December, one thousand
eight hundred and one, authorizing Thomas Claxton to employ an additional
assistant, two servants, and two horses, be, and the same is hereby,
continued in force during this and the next session: and that the said
Thomas Claxton be allowed a further sum of one dollar and twenty-five
cents, to be paid in like manner, to enable him to increase the number of
his attendants.
A message from the Senate informed the House that the Senate have
appointed the Rev. Dr. GANTT, a Chaplain to Congress, on their part.
SATURDAY, October 22.
_Appropriation for the Louisiana Treaty._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In my communication to you of the 17th instant, I informed you
that conventions had been entered into with the Government of
France for the cession of Louisiana to the United States.
These, with the advice and consent of the Senate, having now
been ratified, and my ratification exchanged for that of the
First Consul of France, in due form, they are communicated to
you for consideration in your legislative capacity. You will
observe that some important conditions cannot be carried into
execution, but with the aid of the Legislature; and that time
presses a decision on them without delay.
The ulterior provisions, also suggested in the same
communication, for the occupation and government of the
country, will call for early attention. Such information
relative to its government, as time and distance have permitted
me to obtain, will be ready to be laid before you within a
few days. But, as permanent arrangements for this object may
require time and deliberation, it is for your consideration
whether you will not, forthwith, make such temporary provisions
for the preservation, in the meanwhile, of order and
tranquillity in the country, as the case may require.
TH. JEFFERSON.
OCT. 21, 1803.
Mr. HUGER hoped the reading of the treaty and conventions would be
dispensed with, and that they would be printed for the use of the members.
Mr. RANDOLPH hoped they would be read.
The reading of course was proceeded with, which being finished,
Mr. RANDOLPH moved a reference of the Message, and of the documents
accompanying it, to the whole House on Monday; which motion was agreed to
without a division.
Mr. RANDOLPH begged leave to submit a resolution, arising out of the
Message, which he hoped would be considered at that time, for the purpose
of referring it to the same committee to whom had been just referred the
Message:
_Resolved_, That provision ought to be made for carrying into
effect the treaty and convention concluded at Paris on the
30th April, 1803, between the United States of America and the
French Republic.
Referred to the same committee, without a division.
MONDAY, October 24.
_The Louisiana Treaty._
Mr. GRISWOLD moved the following resolution:
_Resolved_, That the President of the United States be
requested to cause to be laid before this House a copy of the
treaty between the French Republic and Spain, of the first
of October, one thousand eight hundred, together with a copy
of the deed of cession from Spain, executed in pursuance of
the same treaty, conveying Louisiana to France, (if any such
deed exists;) also copies of such correspondence between the
Government of the United States and the Government or Minister
of Spain, (if any such correspondence has taken place,) as
will show the assent or dissent of Spain to the purchase of
Louisiana by the United States; together with copies of such
other documents as may be in the Department of State, or any
other Department of this Government, tending to ascertain
whether the United States have, in fact, acquired any title to
the province of Louisiana by the treaties with France of the
thirtieth of April, one thousand eight hundred and three.
Mr. GRISWOLD said that, by adverting to the Message of the President
respecting the treaty and conventions lately concluded between the United
States and the French Government, he found that the President, speaking
on the subject, observes: “As permanent arrangements for this object
require time and deliberation, it is for your consideration whether you
will not forthwith make such temporary provisions for the preservation,
in the meanwhile, of order and tranquillity in the country, as the case
may require.” He recommends to the immediate attention of Congress the
passage of some temporary laws. This being the case, and the subject
being about to be brought before the House, it became important that
they should know distinctly what they had obtained by the treaty; and
whether there were any territory belonging to the United States to take
possession of, or any new subjects to govern. Inasmuch as if no new
territory or subjects were acquired, it was perfectly idle to pass even
temporary laws for the occupation of the one, or the government of the
other.
In the treaty lately concluded with France, the treaty between France
and Spain is referred to; only a part of it is copied. The treaty
referred to must be a public treaty. In the nature of things it must
be the title-deed for the province of Louisiana. The Government must
have a copy of it. As there is but a part recited, it is evidently
imperfect. It becomes therefore necessary to be furnished with the whole,
in order to ascertain the conditions relative to the Duke of Parma; it
also becomes necessary to get the deed of cession; for the promise to
cede is no cession. This deed of cession, Mr. G. also presumed, was in
the possession of Government. It was also important to know under what
circumstances Louisiana is to be taken possession of, and whether with
the consent of Spain, as she is still possessed of it. If it is to be
taken possession of with her consent, the possession will be peaceable
and one kind of provision will be necessary; but if it is to be taken
possession of in opposition to Spain, a different provision may be
necessary. From these considerations he thought it proper in the House to
call upon the Executive for information on this point. Other important
documents may, perhaps, likewise be in the hands of the President.
Mr. RANDOLPH hoped the resolution would not be agreed to. He was well
apprized of the aspect which it was in the power of ingenuity to give to
a refusal, on the part of that House, to require any information which
gentlemen might think fit to demand of the Executive, however remotely
connected with subjects before them. But the dread of imputations
which he knew to be groundless should never induce him to swerve from
that line of conduct which his most sober judgment approved. Did he
indeed conceive that the nation, or the House, entertained a doubt
of our having acquired new territory and people to govern; could he
for a moment believe that even a minority, respectable as to numbers,
required any other evidence of this fact than the extract from the treaty
which had just been read, he would readily concur with the gentleman
from Connecticut in asking of the Executive, whether indeed we had
a new accession of territory and of citizens, or, as that gentleman
had been pleased to express himself, subjects to govern. He hoped the
gentleman would excuse a small variation from his own phraseology,
since, notwithstanding the predilection which some Governments and some
gentlemen manifested for this form, Mr. R. asked for himself the use of
such as were more familiar to American ears and American constitutions.
The Executive has laid before this House an instrument, which he tells
us has been duly ratified, conveying to the United States the country
known under the appellation of Louisiana. The first article affirms the
right of France, to the sovereignty of this territory, to be derived
under the Treaty of St. Ildefonso, which it quotes. The third article
makes provision for the future government, by the United States, of its
inhabitants; and the fourth provides the manner in which this territory
and these inhabitants are to be transferred by France to us. There
has been negotiated a convention, between us and the French Republic,
stating, in the most unequivocal terms, that there does exist on her part
a right to the country in question, which is supported by the strongest
possible evidence, and pledging herself to put us in possession of that
right, so soon as we shall have performed those stipulations, on our
part, in consideration of which France has conveyed to us her sovereignty
over this country and people. From the nature of our Government, these
stipulations can only be fulfilled by laws to the passing of which the
Legislature alone is competent. And when these laws are about to be
passed, endeavors are made to impede, or frustrate, the measure, by
setting on foot inquiries which mean nothing, or are unconnected with
the subject, and this is done by those who have always contended that
there was no discretion vested in this House by the constitution, as to
carrying treaties into effect. If, sir, gentlemen believe that we must
eventually do that which rests with us, towards effecting this object,
to what purpose is this inquiry? Mr. R. begged the House not to impute
to him any disposition to countenance this monstrous doctrine, whose
advocates now found it so difficult to practise. On the contrary, he
held in the highest veneration the principle established in the case of
the British Treaty, and the men by whom it was established, that, in all
matters requiring legislative aid, it was the right and duty of this
House to deliberate, and upon such deliberation, to afford, or refuse,
that aid, as in their judgments the public good might require. And he
held it to be equally the right of the House to demand such information
from the Executive, as to them appeared necessary to enable them to form
a sound conclusion on subjects submitted, by that department, to their
consideration. But those who then contended that this House possessed no
discretion on the subject, that they were bound implicitly to conform
to the stipulations, however odious and extravagant, into which the
treaty-making power might have plunged the nation--those who then said
that we cannot deliberate, are now instituting inquiries to serve as the
basis of deliberation--(for if we are not to deliberate upon the result,
why institute any inquiry at all?)--inquiries, which are in their very
nature deliberation itself. But whilst he arraigned the consistency of
other gentlemen, Mr. R. said that it behoved him to assert his own.
Information on subjects of the nature of that which they were then
discussing, might be required for two objects: to enable the House to
determine whether it were expedient to approve a measure which on the
face of it carried proof of its impolicy; or to punish ministers who may
have departed from their instructions--who may have betrayed the interest
confided by the nation to their care.
To illustrate this remark, let us advert to the case of the Treaty
of London, generally known as Mr. Jay’s treaty. That instrument had
excited the public abhorrence. The objections to carrying it into
effect were believed insuperable. This sentiment pervaded the House of
Representatives, and when they demanded information from the Executive,
they virtually held this language: “Sir, we detest your treaty--we feel
an almost invincible repugnance to giving it our sanction--but if, by
the exhibition of any information in possession of the Executive, we can
be convinced that the interests of the United States have been supported
to the utmost extent;--that, wretched as this instrument is, the terms
are as good as were attainable; and that, bad as those terms are, it is
politic under existing circumstances to accept them, we will, however
reluctantly, pass the laws for carrying it into effect. The present
case, if he understood any thing of the general sentiment, was, happily,
of a different nature. The treaty which they were then called upon to
sanction, had been hailed by the acclamations of the nation. It was not
difficult to foresee, from the opinions manifested in every quarter,
that it would receive the cordial approbation of a triumphant majority
of that House. If such be the general opinion--if we are not barely
satisfied with the terms of this treaty, but lost in astonishment at the
all-important benefits which we have so cheaply acquired, to what purpose
do we ask information respecting the detail of the negotiation? Has any
one ventured to hint disapprobation of the conduct of the ministers who
have effected this negotiation? Has any one insinuated that our interests
have been betrayed? If, then, we are satisfied as to the terms of this
treaty, and with the conduct of our ministers abroad, let us pass the
laws necessary for carrying it into effect. To refuse--to delay, upon
the plea now offered, is to jeopardize the best interests of the Union.
Shall we take exception to our own title? Shall we refuse the offered
possession? Shall this refusal proceed from those who so lately affirmed
that we ought to pursue this very object at every national hazard? I
should rather suppose the eagerness of gentlemen would be ready to
outstrip the forms of law in making themselves masters of this country,
than that, now, when it is offered to our grasp, they should display an
unwillingness, or at least an indifference, for that which so lately was
all-important to them. After the message which the President has sent us,
to demand, if indeed we have acquired any new subjects, as the gentleman
expresses it, which renders the exercise of our legislative functions
necessary, would be nothing less than a mockery of him, of this solemn
business, and of ourselves. Cautionary provisions may be introduced into
the laws for securing us against every hazard, although, from the nature
of our stipulations, we are exposed to none. We retain in our own hands
the consideration money, even after we have possession.”
Mr. R. expressed himself averse to demand the Spanish correspondence.
The reasons must be obvious to all. The possession of Louisiana by us,
will necessarily give rise to negotiations between the United States and
Spain, relative to its boundaries. These have probably commenced, and are
now pending. He hoped, therefore, the House would go into committee on
the Message of the President, and after resolving to pass the requisite
laws, if further information shall be wanting in relation to the mode of
taking possession, or any other object of detail, the Executive might be
called upon to furnish it.
Mr. GODDARD did not intend to enter upon a long discussion of the
resolution; but it seemed to him that the reasons of the gentleman from
Virginia for opposing it were very erroneous. On what ground was the
opposition made? Altogether on the ground that Spain had actually made
the cession to France. Mr. G. apprehended no such impression had been
made on the House by the information before them. In the first article of
the treaty they learned what the title of France was. The treaty says,
“Whereas, by the article the 3d of the treaty concluded at St.
Ildefonso, the 9th Vendemiaire, an 9, (1st October, 1800,)
between the First Consul of the French Republic and His
Catholic Majesty, it was agreed as follows:
“His Catholic Majesty promises and engages, on his part, to
cede to the French Republic, six months after the full and
entire execution of the conditions and stipulations therein
relative to his Royal Highness the Duke of Parma, the colony
or province of Louisiana, with the same extent that it now has
in the hands of Spain, and that it had when France possessed
it; and such as it should be after the treaties subsequently
entered into between Spain and other States.
“And whereas, in pursuance of the treaty, and particularly of
the third article, the French Republic has an incontestable
title to the domain and to the possession of the said
territory; the First Consul of the French Republic, desiring
to give to the United States a strong proof of his friendship,
doth hereby cede to the said United States, in the name of the
French Republic, for ever and in full sovereignty, the said
territory, with all its rights and appurtenances, as fully and
in the same manner as they have been acquired by the French
Republic in virtue of the above-mentioned treaty, concluded
with his Catholic Majesty.”
Mr. GODDARD asked whether the conclusion followed that France had an
incontestable title to Louisiana? There was no such evidence. If in
virtue of this treaty we purchase a promise on the part of His Catholic
Majesty to cede, and not an incontestable title, he would ask if the
promise constituted a title? France only says, we cede all our title.
This, and this only, is the language of the instrument. If this is
the case, is it not proper to inquire whether there are other acts
by which Spain has ceded Louisiana to France? Such acts may exist.
Certain stipulations were made by France to Spain, on which the cession
depended. Do we not then wish to know whether these stipulations have
been fulfilled and whether they are binding, or whether Spain has waived
them? Are there in existence any documents to that effect? It has been
hinted that such documents exist in the newspapers; but are we, in an
affair of this magnitude, to be referred to the dictum of a newspaper? He
apprehended that this was a novel mode of legislation.
Mr. RANDOLPH said, if the gentleman from Connecticut would confine his
motion to the Treaty of St. Ildefonso, he should be ready to acquiesce in
it, though he did not believe that instrument would throw any new light
on the subject.
Mr. GREGG said his wish was that the resolution should be divided, and
that the Treaty of St. Ildefonso only should be requested. It had been
conceded that it might be of some use in ascertaining the limits of
the cession. To the other members of the resolution he was opposed. He
therefore moved a division of the question.
Mr. GRISWOLD remarked that it would be more orderly to move the striking
out of the last paragraph.
Mr. THATCHER said, gentlemen objecting to this resolution had taken
different grounds. Some oppose it as inconsistent with the sentiments
that prevailed in the case of the British Treaty; others, because it is
premature, and others, because it is unnecessary. He did not expect the
first objection from any member on that floor; much less did he expect
it from the quarter in which it originated. The advocates of the motion
were charged with inconsistency. He was not a member of the House at
the time of the British Treaty, but, on referring to the Journal, it
would be perceived that the object of gentlemen who then called for
papers was to go into the merits of the British Treaty. It would not be
denied that the ground then taken by gentlemen on the other side was,
that the House had a right to examine the merits of the treaty, and to
the assertion of that right it was that the President answered. We now
say that it is not necessary for us to act in our legislative capacity,
intending, if it shall appear to be necessary, not to withhold acting.
Mr. T. therefore conceived that they exhibited no inconsistency, as they
did not purpose at this time to go into the merits of the treaty, and as
they acknowledged the treaty, if constitutionally made, to be binding.
But they wanted information on subjects of legislation.
Mr. NICHOLSON was extremely glad to find that gentlemen on the other
side of the House had at length abandoned the ground which they had
taken some years ago. He was rejoiced that they were now willing to
acknowledge, what they had heretofore most strenuously denied, that the
House of Representatives had a constitutional right, not only to call for
papers, but to use their discretion in carrying any treaty into effect.
That it must now be their impression was evident, or their conduct was
surely unaccountable. Why else do they call for papers, why inquire into
our title to the province of Louisiana? If the doctrine of a former day
was still to be adhered to, why urge this inquiry? If gentlemen are
consistent with themselves, if they have not forgot the lessons which
they inculcated upon the ratification of the British Treaty, this House
has no right to call for papers, no right to make inquiry, no right to
deliberate, but must carry this treaty into effect, be it good or bad;
must vote for all the necessary measures, whether they are calculated
to promote the interests of the United States or not. The doctrines
of old times, however, are now given up, the ground formerly taken is
abandoned. We shall no longer hear that the Executive is omnipotent, and
that the representatives of the people are bound to vote, blindfolded,
for carrying into effect all treaties which the President and the Senate
may think proper to make and ratify. He thanked the gentlemen for the
admission, and hoped that the country would profit by it hereafter.
He was happy to say that this was not now, nor ever was, the doctrine
of himself and his friends. They meant to deliberate, they meant to use
their discretion in voting away the treasure of the nation. He agreed
with gentlemen, that if a majority of the House entertained any doubt as
to the validity of the title we have acquired, they ought to call for
papers; and he had no doubt, if there was any dissatisfaction, they would
call. He himself should have no objection to vote for the resolution if
it was confined to proper objects, not indeed to satisfy himself, for he
was already fully satisfied, but to satisfy other gentlemen; to satisfy
the American people, that the insinuations thrown out about the title,
are totally without foundation. The resolution in its present shape,
however, was highly improper; it looked to extrinsic circumstances,
and contemplated an inquiry into subjects totally unconnected with the
treaty with France. What, said Mr. N., has Spain to do in this business?
Gentlemen ask if she has acquiesced in our purchase, and call for her
correspondence with our Government. What is the acquiescence of Spain to
us? If the House is satisfied, from the information laid on the table,
that Spain had ceded Louisiana to France, and that France had since
ceded it to the United States, what more do they require? Are we not an
independent nation? Have we not a right to make treaties for ourselves
without asking leave of Spain? What is it to us whether she acquiesces or
not? She is no party to the treaty of cession, she has no claim to the
ceded territory. Are we to pause till Spain thinks proper to consent, or
are we to inquire, whether, like a cross child, she has thrown away her
rattle, and cries for it afterwards?
With regard to the Treaty of St. Ildefonso, Mr. N. said, he should
have no objection to its being laid before the House, if it was in the
possession of the Executive. In all probability, however, this was not
the case, as it was known to be a secret treaty on other subjects of
great importance between France and Spain. As to the deed of cession
spoken of, he really did not understand what was meant, for he imagined
it was not expected a formal deed of bargain and sale had been executed
between two civilized nations, who negotiated by means of ambassadors. If
there were any other papers which could give gentlemen more information,
he had no objection, either, that these should be laid before them.
Not indeed for his own satisfaction, but for that of those who were
not already satisfied, if there were any of that description. One very
important paper, he knew from high authority, was certainly in existence,
and possibly might be in the power of the Executive. This was a formal
order, under the royal signature of Spain, commanding the Spanish
officers at Orleans to deliver the province to the French Prefect, which
he considered equal, perhaps superior to any deed of cession; for it was
equal to an express recognition on the part of Spain, that France had
performed all the conditions referred to in the Treaty of St. Ildefonso.
It was an acknowledgment that Spain had no further claims upon Louisiana,
and would show that any interference on her part ought to have no
influence on the American Government.
Mr. MITCHELL said he rose to express his sentiments against the whole
body of the resolution under debate. But his disinclination to adopt it
did not arise from any doubt of the right which the House possessed to
call upon the Executive for information. He had no hesitation to ask the
President for papers whenever it was necessary to obtain them. And it was
equally clear to him that whenever that dignified officer was properly
applied to, he would comply cheerfully with the request of Congress,
or of either branch of it. He owned that in some cases it would be the
duty of the House to pursue this mode of inquiry, and equally would it
be the duty of the head of the Executive Department to give his aid and
countenance.
In the present stage of the proceedings respecting the treaty and
conventions with France concerning Louisiana, he deemed it improper to
embarrass the business by an unseasonable call upon the Executive for
papers. The President had already communicated various information on
this subject, in his Message on the first day of the session. Additional
information was given in his Message of the 21st, wherein he told the
House that the ratification and exchanges had been made. This was
accompanied with instruments of cession and covenant concluded at Paris
between our ministers and the agents of the French Republic. All this
information we had already on our tables. This the President had put
the House in possession of from his own sense of duty. This obligation
was imposed on him by the constitution, which declares that he shall,
from time to time, give to Congress information of the state of the
Union, and recommend to their consideration such measures as he shall
judge necessary and expedient. Mr. M. said he had a firm belief that
the President had complied with this constitutional injunction. He
had communicated such intelligence as he had received; and if he was
possessed of any thing else needful for the deliberation of the House,
he was willing to think the Chief Magistrate of the Union would have
spontaneously imparted it.
The question was taken on agreeing to the first member of the resolution,
as follows:
_Resolved_, That the President of the United States be
requested to cause to be laid before this House a copy of the
treaty between the French Republic and Spain, of the 1st of
October, 1800.
The House divided--ayes 59, noes 59. The SPEAKER declaring himself in the
affirmative, the motion was carried.
Mr. RODNEY suggested an alteration in the second member of the
resolution, so as to read “instrument,” instead of “deed.”
Mr. GRISWOLD had no objection to the modification.
The second member, so modified, was read as follows:
“Together with a copy of the instrument of cession from Spain,
executed in pursuance of the same treaty conveying Louisiana to
France, (if any such instrument exists.)”
Mr. HUGER confessed his impressions to be favorable to the treaty, though
the arguments urged that day, certainly possessed great weight. He was
rather of opinion that no such instrument as that referred to in the
resolution existed. But if it did exist, its publication would certainly
be satisfactory to the people and the House. He declared himself ready to
vote for carrying the treaty into effect.
Mr. NICHOLSON did not know whether his remarks had been correctly
understood. He did not know whether the document he alluded to could
strictly be called the instrument of cession. He had drawn an amendment
to this part of the resolution, which he would propose, if in order, to
wit:
“Or other instrument showing that the Spanish Government had
ordered the province of Louisiana to be delivered to France.”
The SPEAKER said, the House having agreed to insert the word
“instrument,” it was not in order to receive a substitute.
Mr. HUGER moved to reconsider the vote of the House in favor of the
insertion of the word “instrument.”
Motion lost--ayes 24.
The question was then taken on the second member, as above stated, and
lost--ayes 34.
The question was then taken on the third member, viz:
“Also, copies of such correspondence between the Government
of the United States and the Government or Minister of Spain,
(if any such correspondence has taken place,) as will show the
assent or dissent of Spain to the purchase of Louisiana by the
United States:”
And lost--ayes 34.
The question was then taken on the last member of the motion, and lost,
without a division, viz:
“Together with copies of such other documents as may be in
the Department of State, or any other department of this
Government, tending to ascertain whether the United States
have, in fact, acquired any title to the province of Louisiana
by the treaties with France of the 30th of April, 1803.”
The question recurring on the whole of the resolution, as amended,
Mr. NICHOLSON moved to amend the second member by adding to the end
thereof;
“Together with a copy of any instrument in possession of the
Executive, showing that the Spanish Government has ordered the
province of Louisiana to be delivered to the Commissary or
other agent of the French Government.”
Agreed to--ayes 64.
The question was then taken by yeas and nays on the whole of the original
motion, amended as follows:
“_Resolved_, That the President of the United States be
requested to cause to be laid before the House a copy of
the treaty between the French Republic and Spain, of the
1st October, 1800, together with a copy of any instrument
in possession of the Executive, showing that the Spanish
Government has ordered the province of Louisiana to be
delivered to the Commissary or other agent of the French
Government:”
And lost--yeas 57, nays 59.
_Amendment to the Constitution._
The House resolved itself into a Committee of the Whole on the report of
a select committee on propositions of amendment to the constitution.
The report was read, as follows:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds of
both Houses concurring_, That the following article be proposed
to the Legislatures of the different States as an amendment to
the Constitution of the United States, which, when ratified by
three-fourths of the said Legislatures, shall be valid to all
intents and purposes as a part of the said constitution, viz:
“In all future elections of President and Vice President, the
Electors shall name in their ballots the person voted for as
President, and in distinct ballots the person voted for as Vice
President, of whom one at least shall not be an inhabitant of
the same State with themselves. The person having a majority of
all the Electors for President shall be the President; and if
there shall be no such majority, the President shall be chosen
from the highest numbers, not exceeding three, on the list
for President, by the House of Representatives, in the manner
directed by the constitution. The person having the greatest
number of votes as Vice President shall be the Vice President,
and in case of an equal number of votes for two or more persons
for Vice President, they being the highest on the list, the
Senate shall choose the Vice President from those having such
equal number, in the manner directed by the constitution.”
Mr. DAWSON observed, that at the time of the adoption of the
constitution, that part of it which related to the election of a
President and Vice President had been objected to; and evils likely to
occur had been foreseen by some gentlemen at that day. Experience had
shown that they were not mistaken. Every gentleman in that House knew
the situation in which the country had been placed by the controverted
election of a Chief Magistrate; it was one which he trusted never would
return. It had been a subject much reflected on by the people, and by
the State Legislatures, several of which had declared their approbation
of the principle contained in the resolution reported by the committee.
The House had two years since ratified a similar amendment by a
constitutional majority of two-thirds. At that time no objections were
made to the principle of the amendment. All the objection then made was
on account of the lateness of the day and thinness of the House. Mr. D.
considered it unnecessary to make any further remarks at that time, as he
could not anticipate any objections that might be urged. He moved that
the Committee should rise and report the resolution without amendment.
Mr. J. CLAY, though in favor of the principle of the amendment, was
of opinion that, as to some of its parts, it required alteration. He
therefore moved:
“But if no person have such majority, then the House of
Representatives shall immediately proceed to choose by ballot
from the two persons having the greatest number of votes,
one of them for President; or if there be three or more
persons having an equal number of votes, then the House of
Representatives shall in like manner, from the persons having
such equality of votes, choose the President; or if there be
one person having a greater number of votes--not being a
majority of the whole number of Electors appointed--than any
other person, and two or more persons who have an equal number
of votes one with the other, then the House of Representatives
shall in like manner, from among such persons having the
greater number of votes and such other persons having an
equality of votes, choose the President.”
Mr. VAN CORTLANDT thought the amendment liable to objection.
Mr. G. W. CAMPBELL was in favor of the principle contained in the
amendment. He considered it to be the duty of this House, in introducing
an amendment to the constitution on this point, to secure to the people
the benefits of choosing the President, so as to prevent a contravention
of their will as expressed by Electors chosen by them; resorting to
legislative interposition only in extraordinary cases: and when this
should be rendered necessary, so guarding the exercise of legislative
power, that those only should be capable of legislative election who
possessed a strong evidence of enjoying the confidence of the people.
This was the true spirit and principle of the constitution, whose object
was, through the several organs of the Government, faithfully to express
the public opinion. For this reason he was in favor of the proposed
amendment. By it we shall make a less innovation on the spirit of the
constitution than by rejecting it, and adopting the report of the select
committee. There were obvious reasons why the persons from whom a choice
may be made should be fewer in case of a designation of the office than
heretofore. At present the whole number of electoral votes is one hundred
and seventy-six. As the constitution now stands, four candidates might
have an equal number of votes, or three might have a majority, viz: one
hundred and seventeen each. According to the proposed amendment, but one
can have a majority, and if two persons should be equal and highest, it
is not probable that the third candidate will have many votes.
Mr. GRISWOLD said it was very difficult to ascertain the precise import
of the amendment offered by the gentleman from Pennsylvania by barely
hearing it read from the Chair. In the meaning therefore which he
gave it, he might perhaps be mistaken. If not mistaken, it involved a
principle and implied a change, which he had never before heard suggested
on that floor, or in the part of the country from which he came. It
is well known to every member, that under the constitution as it at
present stands, the votes given for a President in this House are by
States, and not according to the majority of the members of the whole
body. The amendment, as reported by the select committee, preserves this
original feature of the constitution by prescribing that the election
shall be proceeded with as pointed out by the constitution. But the
present amendment varies this mode, according to which it is to be made
without respect to States. Of course a majority of the members are to
decide. He submitted it to gentlemen whether they were willing in this
way to sacrifice the interests and rights of the smaller States. If
this be the intention of gentlemen, we ought to have time to deliberate
on the subject before it is pressed to a decision. The gentleman from
Pennsylvania will explain whether this is his intention.
Mr. J. CLAY begged leave explicitly to state, for the satisfaction of the
gentleman from Connecticut, that it was not his intention to change that
part of the constitution which prescribed that the votes should be by
States; and if it would induce the gentleman to vote for the resolution
he had moved, he would add the words of the constitution, viz:
“But in choosing the President the votes shall be taken by
States, the representation from each State having one vote; a
quorum for this purpose shall consist of a member or members
from two-thirds of the States, and a majority of all the States
shall be necessary to a choice.”
These words were accordingly added.
Mr. DAWSON observed that this proposition had been submitted to the
select committee, who had considered it more objectionable than that
reported. Their object was to innovate as little as possible on the
constitution. A great part of it referred to cases so extremely remote
as were not likely to happen. The only material change it made was to
reduce the number of persons from whom a choice should be made from three
to two. At present the election for a President and Vice President was
made from the five highest on the list. As, according to the proposed
amendment, a designation of the persons voted for as President and
Vice President was to be made, it was considered that by giving the
three highest to the House of Representatives, from which to choose a
President, and the two highest to the Senate, from which to choose a Vice
President, the spirit of the constitution would not be changed. He hoped
therefore the report of the committee would be agreed to. He believed
it comprehended all cases which were probable; and he further believed
that if they spent a month they would not devise an amendment that would
provide for all possible cases that may happen.
Mr. CLOPTON said he rose to express his approbation of the amendment
offered by the gentleman from Pennsylvania (Mr. CLAY.) He said that
indeed the amendment could not but be acceptable to him, inasmuch as it
corresponded with the ideas he had the honor to express to the committee
on this subject the other day. He begged leave now to make a few remarks
in addition to those which he had then stated. He said, if any thing
is to be lamented as a defect in the fundamental principles of our
Government, that defect perhaps consists in a departure from the plain
and simple modes of immediate election by the people as to some of the
branches of the Government. He did not mean however now to discuss, nor
did he know that he ever should discuss, this point. The Constitution of
the United States having established a different principle in respect to
the election of the several departments of the Government, except that
branch of the Legislature which this House composes; and the object of
the proposed amendment to the constitution not being the transmutation of
a fundamental principle, but merely an alteration in the mode heretofore
directed of electing one branch of the Government according to the
principle already established, his business and his object was to state
to this committee those ideas which occurred to him on this occasion as
suited to the subject as it now stands before the committee.
Mr. C. said that most seriously considering the principles of the
Government in such a point of view as he had the honor to state to
the committee, he was irresistibly impressed with the opinion that a
legislative election of President or Vice President, whenever resorted
to, should be restrained to the smallest number above a unit, or to those
persons who have equal electoral votes. He considered it as a position
clearly and unquestionably true, that if the field of election, when
not decided by the voice of the people themselves, should be left too
wide, more chances will there always be for the introduction of abuses
in determining on a choice, if those whose province it shall be to
decide, should be actuated by a spirit adverse to the public sentiment.
Results ungrateful to the public feeling might indeed become sources of
discontent truly to be lamented. The demon of discord might be called
forth, and stalking over our land, might unfortunately produce a state
of things very different from that peaceful, tranquil state, which would
follow a decision more conformable to the will of the people. Such a
decision he believed would be ensured were the election to be confined
to those two persons only who had received the most ample testimony
of the public confidence, or to those who had been stamped with equal
testimonials of that confidence.
Mr. SMILIE would wish one principle altered in the report of the select
committee, viz: that which confined the election of the President to the
three highest persons voted for. It was impossible for human wisdom to
provide for all cases that might occur. Their time was not well spent
in providing for cases extremely remote. He had but one object in view,
the designation of office; and the more simple the proposition, the more
likely they were to obtain this object. It should be recollected that the
constitution was the act of the people, and ought not to be altered till
inconveniences actually arise under it. He believed, though particular
parts might be defective in theory, they ought not to be changed till
practical inconveniences had been experienced. No such inconvenience had
yet been felt from choosing the President from the five highest on the
list. Is it, then, prudent to embarrass the great principle, in which
they generally concurred, with incidental propositions, when there was no
necessity for them? This amendment was to obtain the assent of thirteen
legislative bodies before it would be binding. The simpler, then, the
proposition, the more likely it was to succeed. His idea, therefore, was
to leave the constitution as it now stood, so far as it related to a
choice being made from the five highest, and only so far to change it as
related to a designation of the office.
Mr. SANFORD said the great object of the amendment ought to be to prevent
persons voted for as Vice President from becoming President. If the
amendment effected this, it was sufficient. All other innovation upon the
constitution was improper; and no danger could arise from extending the
right of the House of Representatives to making a choice from the five
highest.
Mr. RODNEY said that in the select committee he had been in favor of
the number stated in the constitution. He was not for innovating on the
constitution one tittle more than was absolutely necessary. As to the
mere designation of office, the people looked for and expected it; and
if that were obtained, they would be satisfied. He well knew that if
amendments to this simple proposition were multiplied, objections to the
whole would also be increased. Having been originally in favor of five,
and thinking the inconveniences apprehended by some gentlemen not likely
to occur, he should vote in favor of the amendment of the gentleman from
Maryland, principally for the reason assigned by the gentleman from
Connecticut, that it would allow to the smaller States a larger scope of
choice.
Mr. ELLIOT hoped the amendment of the gentleman from Maryland would not
prevail; and coming, as he did himself, from a small State, he trusted
the House would pardon him for assigning his reasons for that hope. He
felt as much confidence in the House of Representatives as the gentleman
from Connecticut; but he was of opinion that their discretion ought
to be limited. The amendment will give the House of Representatives
the unqualified power of electing from the whole number on the list of
persons voted for as President, and on that ground he opposed it. It
was said to be a question of larger and smaller States, and those who
represent the smaller States were called upon to check the usurpation of
the larger States. Our system was undoubtedly federative, and there might
be danger of a usurpation of the large States if the small ones were not
protected by the constitution. His wish was that they might be so guarded.
Mr. G. W. CAMPBELL said he, too, represented a small State, and was
anxious to preserve the rights of the small States. But in a great
constitutional question, while these rights were not lost sight of,
principle ought also to be regarded. This he conceived to be his duty,
whatever effect it might have upon the State he represented. For this
reason he considered it proper to express his opinions on the present
occasion. It was a vital principle to preserve the constitution as pure
as possible. This rendered it necessary to show that the proposition of
the gentleman from Pennsylvania (Mr. CLAY) came nearer to the principle
of the constitution than that offered by the gentleman from Maryland.
He had already observed that, there being at present no designation,
four was the smallest possible number from which a choice could be made:
to this number but one was added, making, altogether, five. In future
elections there will be one hundred and seventy-six Electors, and if
there be a designation of office, but one person can have a majority. To
confine the choice to two persons will, therefore, in principle, approach
as near as possible to the original principle of the constitution.
Mr. C. was in favor of preserving that part of the constitution which
directed the election to be made by States, wishing as little innovation
as possible on the principles of the constitution. He did not, however,
conceive a mere change of words dangerous, but the establishment of a
principle that deprived the people of the power of electing those who
possessed the largest share of their confidence. He was decidedly in
favor of whatever had this effect, as according with the true spirit of
the constitution; and he was, therefore, opposed to the amendment of the
gentleman from Maryland. His own opinion, too, was that it was best to
express in one article whatever related to the election of President and
Vice President, than refer to the constitution; by which the provisions
on that subject would be rendered much clearer.
The question was then taken on Mr. NICHOLSON’s amendment, and lost--ayes,
29, noes 77.
Mr. RANDOLPH said he came to the House under the impression that another
subject would have occupied their attention on account of its primary
importance, not meaning, however, to disparage the importance of an
amendment to the constitution. But on a subject which must be discussed
in a few days, if at all, it was improper that time should be lost. The
proposed amendment to the constitution was not, he believed, so extremely
pressing as to require immediate attention. The subject to which Mr. R.
had expected the attention of the House would have been first directed,
was the Treaty with France. Hoping that the committee would have decided
on the amendment at an early hour, he had refrained from any motion. But
perceiving that a decision was not likely soon to be made, he would move
that the committee should rise, for the purpose of taking up the treaty
respecting Louisiana.
Mr. DAWSON opposed the rising of the committee.
The question was taken on Mr. RANDOLPH’s motion, and carried--yeas 60,
nays 55. When the committee rose.
And on motion, the House adjourned.
TUESDAY, October 25.
_Louisiana Treaty._
The House resolved itself into a Committee of the Whole on the Message
from the President of the United States, of the twenty-first instant,
enclosing a treaty and conventions entered into and ratified by the
United States and the French Republic; to which Committee of the whole
House was also referred a motion for carrying the same into effect.
Mr. G. GRISWOLD said he had hoped that some gentleman, in favor of the
resolution under consideration, would have risen to assign his reasons
in favor of it. But no gentleman friendly to its adoption having risen,
and feeling himself embarrassed, he would take the liberty of suggesting
his doubts as to the propriety of the resolution. He hoped the committee
would have the candor to believe that, in stating those doubts which hung
upon his mind, his object was not to delay the progress of the measures
contemplated, but to gain information.
In reflecting, for the short time during which the subject had been
before him, he had not been able to pursue it in all its bearings, nor
to solve all the difficulties it presented. He had first asked himself
where was to be found the constitutional power of the Government to
incorporate the territory, with the inhabitants thereof, in the Union
of the United States, with the privileges of citizens of the United
States--is there any such power? And if there is, where is it lodged?
In giving his opinion on the constitutional right of making treaties,
he would say that it was vested in the President and Senate, and that a
treaty made by them on a subject constitutionally in their treaty-making
power, was valid without the assent of this House. This House had, to
be sure, the physical power of refusing the necessary means to carry
treaties into effect; but this power was essentially different from that
conferred by the constitution. But if the treaty-making power should be
exceeded, if it should be undertaken to make it operate upon subjects not
constitutionally vested, he had a right to say that it was his duty not
to carry it into effect. Even should its provisions be highly beneficial,
it was no less their constitutional duty to resist it. He would not
undertake to say that his mind was perfectly fixed, but he entertained
doubts--serious doubts; and he hoped gentlemen would candidly give them
answers.
Mr. RANDOLPH rose for the purpose of satisfying, so far as was in his
power, the doubts expressed by the gentleman from New York (Mr. G.
GRISWOLD). He had listened with great pleasure to the candid exposition
which the gentleman had given of his objections, and from the temper
which he had manifested, Mr. R. relied on being able to satisfy some
of his scruples on this subject. The objections which have been urged
to the motion before the committee, resolved themselves into arguments
against the constitutionality, and arguments against the expediency of
the treaty proposed to be carried into effect. As it would be needless
to repel objections of this last kind, unless those of the first
description could be satisfactorily answered, he should first reply to
the observations which had been made on the constitutional doctrine.
He understood the gentleman from New York as denying that there existed
in the United States, as such, a capacity to acquire territory; that,
by the constitution, they were restricted to the limits which existed
at the time of its adoption. If this position be correct, it undeniably
follows that those limits must have been accurately defined and generally
known at the time when the Government took effect. Either they have been
particularly described in the constitutional compact, or are referred to
as settled beyond dispute, and universally acknowledged. But this was not
the fact, in either case. The constitution not only did not describe any
particular boundary, beyond which the United States could not extend,
but our boundary was unsettled on our north-eastern, southern, and
north-western frontier, at the time of its adoption. But perhaps we shall
be told, that, although our limits were in dispute with our English and
Spanish neighbors, still there were certain boundaries specified in the
Treaty of Paris, of 1783, which were the actual boundaries of the United
States. It was, however, a well attested fact--one of which we possessed
official information from the Executive--that the limits assigned us by
that treaty were incapable of being established. A line running west,
from the Lake of the Woods, not touching the Mississippi at all--it
followed that the United States were without limits beyond the source
of the Mississippi. It will not be denied, that, among the powers which
the Government possesses under the constitution, there exists that of
settling disputes concerning our limits with the neighboring nations.
This power was not only necessary in relation to the disputed boundaries
on the side of Canada and Florida, but was indispensable to a government
over a country of indefinite extent. The existence of this power will
not be denied: it has been exercised in ascertaining our north-eastern
and southern frontier, and it involves in it the power of extending the
limits of the Confederacy. Let us suppose that the Commissioners, under
the Treaty of London, had determined the river St. John or St. Lawrence
to be the _true_ St. Croix--would not that part of the province of New
Brunswick or Quebec which lies on this side of those rivers at this time
have been a part of the United States? Suppose the northern boundary of
Florida had been fixed, under the Treaty of San Lorenzo, to extend from
the Atlantic Ocean to the Gulf; would not all the country north of this
line and east of the Mississippi--part of the very country conveyed by
the treaty lately negotiated, and which gentlemen conceived we could not
constitutionally hold--would not that country, at this time, compose a
part of the United States? That the constitution should tie us down to
particular limits, without expressing those limits; that we should be
restrained to the then boundaries of the United States, when it is in
proof to the committee that no such bounds existed, or do now exist, was
altogether incomprehensible and inadmissible. For, if the constitution
meant the practical limits of the United States, the extent of country
which we then _possessed_--our recent acquisitions, on the side of
Canada and the Natchez, could not be defended. But, sir, said Mr. R.,
my position is not only maintainable by the reason of the constitution,
but by the practice under it. Congress have expressed, in their own
acts, a solemn recognition of the principle, that the United States, in
their federative capacity, may acquire, and have acquired, territory.
It will be recollected, that adverse claims once existed between the
United States and the State of Georgia, in relation to a certain tract
of country between the northern boundary of the Spanish possessions and
what we contended was the southern limit of Georgia--the United States
asserting that the country in question was the property of the United
States, in their confederate capacity, and the State of Georgia claiming
it as hers. Although I have always advocated the claim of that State,
it never was on the principle of an incapacity in the United States to
acquire territory, or any other which affects the question now before
us. It is true, sir, we appointed commissioners to settle the matter
in dispute, amicably, with Georgia; but in the mean time we assumed
the jurisdiction, erected a government over the country, and thereby
established the principle that the United States, as such, could acquire
territory; the country in question, as we contended, never having been
included within the limits of any particular States, and being ceded to
the Confederacy by the Treaty of 1783. But perhaps it may be answered,
that this acquisition, being made anterior to the date of the present
constitution, cannot affect any limitation or restriction, which it may
have provided in relation to this subject; and that to prove that the
old confederation could acquire territory, is not to prove the same
capacity in the present system of Government. To this I reply, that the
constitution contains no such expressed limitation, nor can any be fairly
inferred from it: and that if the old confederation--a mere government of
States--a loosely connected league--all of whose powers, with many more,
are possessed by the present Federal Government--if this mere alliance of
States could rightfully acquire territory in their allied capacity, much
more is the existing Government competent to make such an acquisition. To
me the inference is irresistible.
But the gentleman does not rest himself on this ground alone. He does not
embark his whole treasure in a single bottom. Granting that the United
States are not destitute of capacity to acquire territory, he denies
that this acquisition has been made in a regular way--Congress, says
he, alone is competent to such an act. In this transaction he scents
at a distance Executive encroachment, and we are called upon to assert
our rights, and to repel it. If any usurpation of the privileges of
Congress, or of this House, be made to appear, I pledge myself to that
gentleman to join him in resisting it. But let us inquire into the fact.
No gentleman will deny the right of the President to initiate business
here, by message, recommending particular subjects to our attention. If
the Government of the United States possess the constitutional power
to acquire territory from foreign States, the Executive, as the organ
by which we communicate with such States, must be the prime agent in
negotiating such an acquisition. Conceding, then, that the power of
confirming this act, and annexing to the United States the territory thus
acquired, ultimately rests with Congress, where has been the invasion
of the privileges of that body? Does not the President of the United
States submit this subject to Congress for their sanction? Does he not
recognize the principle, which I trust we will never give up, that no
treaty is binding until we pass the laws for executing it--that the
powers conferred by the constitution on Congress cannot be modified, or
abridged, by any treaty whatever--that the subjects of which they have
cognizance cannot be taken, in any way, out of their jurisdiction? In
this procedure nothing is to be seen but a respect, on the part of the
Executive, for our rights; a recognition of a discretion on our part
to accord or refuse our sanction. Where, then, is the violation of our
rights? As to the initiative, in a matter like this, it necessarily
devolved on the Executive.
Mr. R. said, that he would not dilate upon the importance of the
navigation of the Mississippi, which had been the theme of every tongue,
which we now possessed unfettered by the equal claim of the nation
holding the west bank, a fruitful source of quarrel; but he would call
the attention of the committee to a report which had been made at the
last session and to which publicity had lately been given.
I am not surprised, Mr. Chairman, that in a performance so replete with
information, a single error should be discovered, especially as it does
not affect the soundness of its conclusion. As long ago as the year 1673,
the inhabitants of the French province of Canada explored the country on
the Mississippi. A few years afterwards (1685) La Salle, with emigrants
from old France, made a settlement on the Bay of St. Bernard, and at
the close of the 17th century, previous to the existence of Pensacola,
another French settlement was made by the Governor, D’Ibberville, at
Mobile, and on the Isle Dauphin, or Massacre, at the mouth of that bay.
In 1712, a short time previous to the peace of Utrecht, Louis XIV.
described the extent of the colony of Louisiana (by the settlements) in
his grant of its exclusive commerce to Crozat. Three years subsequent
to this, the Spanish establishment at Pensacola was formed, as well
as the settlement of the Adais on the river Mexicana. After various
conflicting efforts, on both sides, the bay and river Perdido was
established, (from the peace of 1719,) as the boundary between the
French province of Louisiana on the one side and the Spanish province
of Florida on the other: this river being nearly equi-distant between
Mobile and Pensacola. Near the close of the war between England and
France, rendered memorable for the unexampled success with which it was
conducted by that unrivalled statesman, the great Lord Chatham, Spain
became a party on the side of France. The loss of the Havana, and other
important dependencies, was the immediate consequence. In 1762, France,
by a secret treaty of cotemporaneous date with the preliminary Treaty of
Peace, relinquished Louisiana to Spain, as an indemnity for her losses,
sustained by advocating the cause of France. By the definitive Treaty of
1763, France ceded to England all that part of Louisiana which lies east
of the Mississippi, except the island of New Orleans--the rest of the
province to Spain. It is to be observed that although France ostensibly
ceded this country to England, virtually the cession was on the part of
Spain; because France was no longer interested in the business, but as
the friend of Spain, (having previously relinquished the whole to her,)
and because in 1783 restitution was made by England, not to France, but
to Spain, England having acquired this portion of Louisiana, together
with the Spanish province of Florida, annexed to the former that part
of Florida which lies west of the Apalachicola and east of the Perdido;
thereby forming the province of West Florida.
It is only in English geography, and during this period, from 1763 to
1783, that such a country as West Florida is known. For Spain, having
acquired both the Floridas in 1783, re-annexed to Louisiana the country
west of the Perdido subject to the government of New Orleans, and
established the ancient boundaries of Florida; the country between the
Perdido and Apalachicola being subject to the Governor of St. Augustine.
By the Treaty of St. Ildefonso, Spain cedes to France “the province
of Louisiana with the same extent that it now has in the hands of
Spain:” viz: to the Perdido, “and that it had when France possessed it
to the Perdido--and such as it should be after treaties subsequently
entered into between Spain and other powers;” that is, saving to the
United States the country given up by the Treaty of San Lorenzo. We
have succeeded to all the right of France. If the navigation of the
Mississippi alone were of sufficient importance to justify war, surely
the possession of every drop of water which runs into it--the exclusion
of European nations from its banks, who would have with us the same
causes of quarrel, did we possess New Orleans only, which we have had
with the former possessors of that key of the river; the entire command
of the Mobile and its widely extended branches, scarcely inferior in
consequence to the Mississippi itself--watering the finest country and
affording the best navigation in the United States--surely these would be
acknowledged to be inestimably valuable.
Mr. PURVIANCE.--I am clearly and decidedly in favor of the resolution on
your table, premising the appropriations for carrying the treaty between
France and this country into effect; and I sincerely regret, that in
doing so, I shall act adversely to the general sentiment of the gentlemen
with whom it is my pleasure and my pride to confess I have hitherto
politically officiated.
It is true I am, and always have been, opposed to the general tenor of
the present Administration. It has not appeared to me to possess that
bold commanding aspect--that erect and resolute front--which ought to be
assumed by the Executive of a free people, when claiming satisfaction
for a wrong sustained. It has not shown that strong, muscular, athletic
shape, which is calculated to intimidate aggression, or which is enabled
to resist it; nor do I think that it has manifested that firm, dignified,
manly tone of virtue and of spirit, which, resting on the love of a free
people, and conscious of their strength, can ask for the prompt, direct,
and unequivocal satisfaction to which it is entitled, and, being denied,
can take it. It has not appeared like the veteran chief, ready to gird
his loins in defence of his country’s rights; but, if I may be allowed to
use the _magna componere parvis_, it has, to my mind, somewhat resembled
a militia subaltern, who, in time of war, directed his men not to fire on
the enemy, lest the enemy might fire again.
Under such an Administration, I have thought that it would be better
to have the ceded territory on any terms than not to have it at all.
If we have not the spirit or the means of doing ourselves justice,
would it not be better that we bribe those who might be in a situation
to molest us, and thus put it out of their power to do us any injury,
which we cannot or which we will not avenge? There are but two ways
of maintaining our national independence--men and money. Since we did
not use the first, we must have recourse to the last. One of these two
we should be compelled to resort to if France gained possession of
Louisiana, and we had better resort to it now. I deny that they have
as yet gained possession: they have not received a delivery of the
four redoubts which garrison and command the country, nor have they a
single armed soldier there, except those which are particularly attached
to the equipage of the Colonial Prefect. If, sir, we were obliged to
resort to the necessity of purchasing their friendship, after they had
procured an establishment, it would not be confined to one instance of
humiliation and acknowledgment on our part, or one instance of insult
only on theirs. If we purchase this friendship once, we should be
compelled to make annual contributions to their avarice, and be annually
subjected to their insolence. Repeated concessions would only produce a
repetition of injury, and, at last, when we had completely compromitted
our national dignity, and offered up our last cent as an oblation to
Gallic rapacity, we would then be further from conciliation than ever.
The spirit of universal domination, instead of being allayed by those
measures which had been intended for its abatement, would rage with
redoubled fury. Elated by those sacrifices which had been intended to
appease it, it would still grow more fierce; it would soon stride across
the Mississippi, and every encroachment which conquest or cunning could
effect might be expected. The tomahawk of the savage and the knife of the
negro would confederate in the league, and there would be no interval of
peace, until we should either be able to drive them from their location
altogether, or else offer up our sovereignty as a homage of our respect,
and permit the name of our country to be blotted out of the list of
nations for ever.
I confess there are many gentlemen of that nation for whom I entertain
the sincerest esteem; but although I love some of them as friends, they
will pardon me when I say that I do not like all of them as neighbors.
Blood, havoc, and devastation, have for some years past encircled their
proximity, and circumstances equally disastrous and equally improbable
have already taken place. Do we want any evidences of this? We can find
them in Switzerland, in Italy, in Egypt, in Hanover, in France itself.
We have seen the ancient throne of the Capets tumbled from its base; we
have seen the tide of succession which had flowed on uninterruptedly for
ages dammed up for ever; we have seen the sources of the life blood royal
drained dry. And by whom? By the pert younglings of the day.
“An eagle towering in his pride of flight
Was, by a mousing owl, hawkt at and killed.”
We have afterwards seen these puny upstarts, when their hands had been
reddened in the slaughter pens of Paris, kicked from their seats, and a
Corsican soldier embellished with the majesty of the Bourbons. We have
seen one half of the Old World subjected to his dominion, and the other
half alarmed at his power. And is it thought, sir, that America alone,
with an army scarcely sufficient to defend our garrisons, with a navy
scarcely sufficient to punish a Bashaw, with a treasury incommensurate to
our engagements, and an Executive unwilling to strain our energies--is
it, I say sir, for America alone, under these circumstances, singly to
withstand that gigantic nation, fighting on her own ground, fed from
her own granaries, and furnished from her own arsenals? The time once
was, indeed, when we could have redressed our own wrongs, and had an
opportunity of doing so; but that necessity and that opportunity, I take
it sir, have now both passed away.
Yes, thank God! We have now a treaty, signed by themselves, in which
they have voluntarily passed away the only means of annoyance which they
possessed. But I do not thank the honorable gentleman who is at the
head of our Executive. At the time this negotiation was commenced there
could not be the smallest hope of its being carried into effect. The
French Consul had obtained it perhaps for the express purpose of carrying
into effect his favorite scheme of universal domination; it might give
him the chance of injuring the British, controlling the Spaniards, and
dismembering America. Compared with these objects a handful of bank stock
was of no more consequence to him than a handful of sand. His fleet and
army were ready to sail, and his colonial prefect had already arrived.
But, mark! The King of Great Britain, who at this crisis I take to have
been by far the most able negotiator we had, declares war. The scene is
now changed. That which France had refused to our intercessions, she was
now compelled to grant from mere necessity. A state of warfare took place
about the last of March, and the treaty was signed soon afterwards. As
long as I retain the small stock of understanding which it has pleased
God to give me, I shall never be induced to believe, that it was owing
in the smallest degree to the efficacy of diplomatic representation. The
mind of that great man (Buonaparte) is not made of such soft materials
as to receive an impress from the collision of every gentle hand.
Stern, collected, and inflexible, he laughs to scorn the toying arts of
persuasion; his soul is a stupendous rock, which the rushing of mighty
waters cannot shake from its place. No, sir; had it not been for this
happy coincidence of circumstances, the personal solicitations of our
ministers would have been regarded with as listless an ear as if they had
been whispered across the ocean.
Mr. ELLIOT.--Mr. Chairman, although in the short time since I have
had the honor of a seat on this floor, I have several times risen in
debate, that circumstance scarcely diminishes my diffidence at the
present moment. Uneducated in the schools, and unpractised in the arts,
of parliamentary eloquence, it is with no inconsiderable degree of
diffidence that I rise upon the present occasion. There are occasions,
however, where even the eye of timidity should sparkle with confidence;
and there are questions in the discussion of which the finger should
be removed from the lip of silence herself. And such is every occasion
and every question involving the existence, the infraction, or even the
correct and just construction of that constitution which is the palladium
of our privileges, and the temple of our glory. If I might be permitted
to borrow a metaphorical expression from one of the most celebrated
commanders of antiquity, who declared that he intended to spread all
his sails on the ocean of war, I would say that it is with fear and
trembling I presume to launch my little feeble bark on the vast ocean of
eloquence and literature (_pointing to the federal members_) by which I
am surrounded. If, however, the remark be just, that it is even sweet and
glorious to die for one’s country, surely the humbler sacrifice of native
diffidence may with propriety be expected and exacted from a juvenile
American Representative.
Whatever minuter shades or minor differences of opinion may exist
among the American people, there is one point in which we shall all
meet with cordial unanimity. We all unite in an ardent devotion to the
constitution. He who is not devoted to it is unworthy of the honorable
name of an American. I lament that it is necessary to speak particularly
of myself; but duty, not only to myself, but to my constituents, a
numerous and respectable section of the American people, demands it.
It may be objected to me, and with truth, that there was a time when I
professed sentiments hostile to some of the most important provisions in
the constitution. It was not, however, at the time when the constitution
was submitted to the people. I was then in infancy and obscurity,
deprived of the means, and even of the hopes of education. I had yet read
much and reflected more. My ardent and excursive eye had wandered rapidly
over the wide field of ancient history; I thought I beheld my country,
like the Roman Republic in the age of Cato, the sport of every wind and
of every wave. As far as I understood the constitution, I admired it and
wished for its adoption. But when an elegant anonymous writer predicted,
as the consequence of its adoption, that “liberty would be but a name,
to adorn the short historic page of the halcyon days of America,” I
trembled and shuddered for the possible consequences. If in the plenitude
of juvenile self-sufficiency (and who has not been young?) I have since
fancied that I could form a more perfect constitution, that dream of the
imagination has long been past. I have long been sincerely and ardently
attached to the constitution.
The treaty before us is of an immense consequence, and my attention was
early turned to the subject. From the moment of my election, I have
devoted many studious and laborious hours to the subjects connected with
it, and I have anticipated all the objections against it; none of those
presented this day by the gentleman from New York, who opened the debate,
or by the gentlemen who followed him on the same side, have struck my
mind as novel. The question of the constitutionality of the treaty first
presents itself. It is said to be unconstitutional, because it enlarges
the territory of the United States. To reduce the arguments of gentlemen
on this head to syllogistic form, they would not strike the mind with
great force. The constitution is silent on the subject of the acquisition
of territory. By the treaty we acquire territory; therefore the treaty
is unconstitutional. It has been well remarked by an eminent civilian,
that those are not the most correct and conclusive reasoners who are
very expert at their _quicquids_, their _atquis_, and their _ergos_;
but those, who, from correct premises, by just reasoning, deduce correct
conclusions. This question is not to be determined from a mere view of
the constitution itself, although it may be considered as admitted that
it does not prohibit, in express terms, the acquisition of territory. It
is a rule of law, that in order to ascertain the import of a contract,
the evident intention of the parties, at the time of forming it, is
principally to be regarded. This rule will apply, as it respects the
present question, to our constitution, of which it may be said, as the
great Dr. Johnson said of the science of the law, that it is the last
result of human wisdom acting upon human experience. The constitution
is a compact between the American people for certain great objects
expressed in the preamble, [Mr. E. here read the preamble,] in language
to which eloquence and learning can add no force or weight. Previous to
the formation of this constitution there existed certain principles of
the law of nature and nations, consecrated by time and experience, in
conformity to which the constitution was formed. The question before
us, I have always believed, must be decided upon the laws of nations
alone; and under this impression I have examined the works of the most
celebrated authors on that subject.
I recollect a time, sir, when a foreign minister in this country, at
a moment when genius, fancy, and ardent patriotism, were lords of the
ascendant over learning, wisdom, and experience, spoke of the law of
nations and its principles as mere worm eaten authorities, and aphorisms
of Vattel and others. I also recollect that the illustrious man who is
now President of the United States was then Secretary of State, and that
he delivered the unanimous sentiments of the American people when, in
his reply to that minister, he observed that something more than mere
sarcasms of that kind was necessary to disprove those authorities and
principles; and that, until they were disproved, the American nation
would hold itself bound by them. This is the man, sir, who has been so
injuriously calumniated within these walls this morning, and upon whom
such a torrent of bitter eloquence has been poured by the gentleman from
North Carolina (Mr. PURVIANCE;) a gentleman who is himself a model of
eloquence, uniting all the excellencies of Cicero and Demosthenes, and
all other orators, ancient and modern.
The American people, in forming their constitution, had an eye to that
law of nations, which is deducible by natural reason and established by
common consent, to regulate the intercourse and concerns of nations.
With a view to this law the treaty-making power was constituted, and by
virtue of this law, the Government and the people of the United States,
in common with all other nations, possess the power and right of making
acquisitions of territory by conquest, cession, or purchase. Indeed the
gentlemen who deny us the right of acquiring by purchase, would probably
allow us to keep the territory, were it obtained by conquest.
Colonies, or provinces, are a part of the eminent domain of the nation
possessing them, and of course are national property; colonial territory
may be transferred from one nation to another by purchase; this purchase
can be effected by treaty alone, as nations do not, like individuals,
execute deeds, and cause them to be recorded in public offices; that
department of the Government of the nation purchasing, which possesses
the treaty-making power generally, is competent to make treaties for that
purpose. These positions are established by the laws of nations, and are
applicable to the case before us. [Here Mr. E. read a variety of extracts
from Vattel to establish these positions, and observed that they were
corroborated by Grotius, Puffendorf, and other eminent writers on the law
of nature and nations, whose works he had consulted.]
A mere recapitulation, and that not a tedious one, of these principles
and authorities, will now answer the present purpose. Colonies have
always been considered as national property, although the law or practice
of nations, in this instance, may not conform to the law of nature.
Greece treated her colonies with peculiar indulgence: Rome considered
any privileges which hers were suffered to possess, as mere matters
of grace, not of right. The one was a natural and tender parent, the
other a cruel stepmother. Yet I have no recollection that the Grecian
colonies in Asia Minor, Italy, or even at Ionia, were represented in the
Amphyctionic Council, the General Assembly of the States of Greece. The
claim of the British Colonies, which now constitute the United States,
to be represented in that body by which they were taxed, though just in
itself, was novel and unwarranted by the practice of nations. Thank God
the claim was successful, and in consequence of it, we are now here as
the representatives of the American people, deliberating upon their most
important interests. It is unnecessary to reiterate the other positions;
they are undeniable in themselves, and their applicability to the present
case will hardly be disputed. If the treaty be extremely pernicious, or
has not been made by sufficient authority, or has been made for unjust
purposes, it is void by the laws of nations.
The expediency of the treaty is another question, and an important one.
I once hoped that the interests of our country would never require an
extension of its limits, and I regret even that that necessity now
exists. Evils and dangers may be apprehended from this source, and great
evils and dangers may possibly result. But the regions of possibility
are illimitable; those of probability are marked by certain well-defined
boundaries, obvious to all men of reason and reflection, and, in the
language of the poet,
“As broad and obvious to the passing clown,
As to the letter’d sage’s curious eye.”
If we cannot find, in the peculiar principles of our form of government,
and in the virtue and intelligence of our citizens, a sufficient security
against the dangers from a widely extended territory, in vain shall we
seek it elsewhere. There is no magical quality in a degree of latitude
or longitude, a river or a mountain. And it has been well remarked, that
every danger from this quarter might have been apprehended before the
acquisition of this territory. The Roman Empire, or that of Alexander in
the zenith of its glory, was scarcely capable of containing a greater
population than the territory of the United States; and men conversant
with history do not wonder at the transient existence and rapid ruin
of those empires. I repeat it, Mr. Chairman, we must look for our
security in principles and circumstances inapplicable to the ancient
nations. With the present question of expediency, I confess, sir, are
naturally intermingled many considerations, infinitely interesting
to the future peace, prosperity, felicity, and glory of our beloved
country. The physical strength of a nation depends upon an aggregation
of circumstances, amongst which, compactness of population, as well as
territory, may be reckoned; our population may become too scattered; but
this too is only a possible event. These possible evils ought not to be
put in competition with the certain advantage which we derive from the
acquisition.
But a gentleman tells us that the Administration hold out to us an Eden
of the western world, a land flowing with milk and honey, while they have
obtained nothing but a dreary and barren wilderness. Perhaps, if the
gentleman be correct, the acquisition is scarcely the less important.
To demonstrate the advantages of this purchase, it is not necessary to
describe Louisiana as an Elysian region--to describe it as Homer does
the Fortunate Islands, a region, on whose auspicious climate even winter
smiles, where no bleak wind blows from its mountains, and no gale is felt
but the zephyr, diffusing health and pleasure. But from geographical
information, defective as it is, and from reasonable analogies, we may
conclude that, with the exception of some considerable tracts, it is a
country fertile and salubrious. Geography points us to China, Persia,
India, Arabia Felix, and Japan, countries situated in corresponding
latitudes, which, though always overshadowed by the horrid gloom of
despotism, are always productive, and teach us by analogy that Louisiana,
in natural fertility, is probably equal to those beautiful oriental
regions.
The gentleman from North Carolina (Mr. PURVIANCE) says, he shall vote
for carrying the treaty into effect, because the possession of the
territory is important, and the Administration not having, as it ought
to have done, made use of men to obtain it, he will consent to make use
of money. He has applied many curious epithets to the Administration.
He wishes for an Administration _athletic_ and _muscular_, meaning, I
suppose, like the wrestlers in the Grecian circus, or the gladiators
in that of Rome. When I came within these walls, sir, I ardently hoped
that the voice of party would be silent during the discussion of this
subject, and I did not expect to hear the Administration attacked in
the language of vulgarity, malignity, and factious fury. When it is
thus assailed, shall its defenders be silent? During the last session
of Congress, an extraordinary degree of agitation was produced in the
public mind by an egregious violation of our rights by an officer of the
Spanish Government. Neither the people nor the Government were deficient
in that spirit which the gentleman extols, but they were not governed by
false ideas of national honor, and they were acquainted with the law of
nations; they knew that we had no right to make the _denunciatio belli_
precede the _repetitio rerum_--a declaration of war precede a demand for
justice.
Mr. SANFORD did not rise to make a display of his talents. Those who
had confided to him the representation of their interests could have no
such expectations, as they had unfortunately selected a plain Western
farmer. He was sorry to see so much time wasted. He begged the House
would recollect the time within which it was necessary to pass laws
for carrying the treaty into effect. Much has been said of a breach of
the constitution; but has any man shown it? The constitution does not
prohibit the powers exercised on this occasion; and not having prohibited
them, they must be considered as possessed by Government. In his opinion,
it was necessary to carry the treaty into immediate effect. This done,
other measures would require attention which would afford an ample
harvest for the talents and eloquence of gentlemen with which, on any
other occasion, he would be highly pleased.
Mr. THATCHER was sorry to be obliged, at this late hour, to state his
reasons for voting against the resolution; but he should not discharge
his duty to his constituents, were he to refrain from expressing his
ideas. These reasons he should state as briefly as possible. This
resolution is general, and contemplates two objects; it calls for the
occupation and government of Louisiana, and for an appropriation of
fifteen millions of dollars. He had hoped that, on a question of such
national importance, they would have been allowed the papers necessary
for its elucidation. But gentlemen have denied us this privilege. As the
question, whether the treaty should be carried into effect, is a great
constitutional question, I shall, in my remarks, confine myself to the
constitutional objections against the treaty. Two objections have been
made arising from the 3d and 7th articles of the treaty.
The third provides that “the inhabitants of the ceded territory shall be
incorporated in the union of the United States, and admitted as soon as
possible, according to the principles of the federal constitution, to
the enjoyment of all the rights, advantages, and immunities of citizens
of the United States; and in the mean time they shall be maintained and
protected in the free, enjoyment of their liberty, property, and the
religion which they profess.”
I conceive, said Mr. T., that the only sound doctrine is, not that which
has been stated by the gentleman from Kentucky, (Mr. SANFORD,) that
whatever power is not prohibited by the constitution is agreeable to it,
but that such powers as are not given are still held by the States or the
people. No arguments have been addressed to prove that the constitution
delegates such a power. The gentleman from Vermont, (Mr. ELLIOT,) who has
gratified us with so long and flowery a speech, and who has ransacked
Vattel, and various other eminent authors on the laws of nations, has
proved that where the United States have a right to make a treaty, a
treaty may be made. But these authorities do not apply unless he prove
that the constitution gives the powers exercised in the present instance.
The confederation under which we now live is a partnership of States, and
it is not competent to it to admit a new partner but with the consent
of all the partners. If such power exist, it does not reside in the
President and Senate. The constitution says new States may be admitted by
Congress. If this article of the constitution authorizes the exercise of
power under the treaty, it must reside with the Legislature, and not with
the President and Senate.
The gentleman from Virginia says, the principle contained in the third
article of the treaty has been already recognized by Congress, and has
instanced our treaties with Spain and Great Britain respecting the
adjustment of our limits. By adverting to these treaties, it will be seen
that there was then no pretence that we had acquired new territory. They
only establish our lines agreeably to the Treaty of Peace. Certainly
then the facts are not similar, and there exists no analogy of reasoning
between the two cases. The gentleman from Virginia asks whether we could
not purchase the right of deposit at New Orleans? But the argument
meant to be conveyed in this question does not apply. We had the right
before this treaty was formed; nor did we, in consequence of that right,
undertake to admit the people of New Orleans into the Union.
Mr. CROWNINSHIELD.--Mr. Chairman: I rise, sir, to correct the gentleman
from North Carolina in one particular; he has stated that the First
Consul of France signed the treaty ceding Louisiana to the United States
after the declaration of war by Great Britain against France. I believe
he is mistaken, sir, for the Louisiana treaties were signed the 30th
April, and Great Britain issued a declaration of war against France on
the 17th of May. If I am right, the gentleman might have spared himself
the trouble of detracting from the merits of the Executive on this great
occasion.
Now I am up, I beg leave to state to the committee some of the reasons
why I shall give my vote in favor of the treaties.
A resolution is on the table which recommends that provision ought to
be made to carry into effect the late treaties with France, which cede
Louisiana to the United States. Feeling as I do that we have acquired
this country at a cheap price, that it is a necessary barrier in the
Southern and Western quarters of the Union, that it offers immense
advantages to us as an agricultural and commercial nation, I am highly
in favor of the acquisition, and I shall most cordially give my vote in
approbation of the resolution.
What, sir, shall we let slip this golden opportunity of acquiring New
Orleans and the whole of Louisiana for the trifling sum of fifteen
millions of dollars, when one-quarter part of the purchase money will
be paid to our own citizens, the remainder in public stock, which we
are not obliged to redeem under fifteen years? I trust, sir, we shall
not omit to seize the only means now left to us for getting a peaceable
possession of the finest country in the world. The bargain is a good one,
and considering it merely in that light, we ought not to relinquish it. I
have no doubt that the country acquired is richly worth fifty millions of
dollars, and it is my opinion that we ought not to hesitate a moment in
passing the resolution on the table.
We have now an opening for a free trade to New Orleans and Louisiana,
which we never had before, and I hope we shall embrace it. Let us ratify
the treaties, with all their provisions, and we shall see that in less
than three years we have gained the greatest advantages in our commerce.
I wish we may immediately proceed to adopt the resolution before the
committee.
Mr. MITCHILL rose and said, he entreated the indulgence of the committee
for rising at so late a stage of the debate, when seven hours have
already been employed in the sitting of the day. And the reason of his
request was, that such extraordinary doctrines have been advanced against
carrying into effect the treaty with France which cedes Louisiana to our
nation, and such repeated allusions have been made to the sentiments
which he submitted to the House during the debate of yesterday, that he
felt himself called upon to attempt a reply, and therein to show that the
grounds taken by the gentlemen of the opposition are neither strong nor
tenable. Although the subject is ample and copious, he should endeavor to
condense his remarks, to so moderate a compass, as not to trespass long
upon the patience of the committee.
My colleague, said Mr. M., who opened the debate this morning, (Mr. G.
GRISWOLD,) displayed in his speech the objections raised against the
resolution on the table, so fully, that he almost exhausted the subject.
For, in listening attentively to the reasoning of the gentleman from
Virginia, who followed him, (Mr. J. LEWIS,) and of the other gentleman
from Virginia, who spoke next, (Mr. GRIFFIN,) he could not discern that
any new or additional matter of much consequence had been urged. Nor did
he discover much more than a repetition in substance of his colleague’s
reasoning, in what had been urged by the gentleman from Mass., (Mr.
THATCHER,) and the gentleman from Connecticut (Mr. GRISWOLD;) though
the statement of their objections had received a form and coloring
diversified according to the skill and ingenuity of each.
The gentlemen, Mr. Chairman, who resist the provisions necessary to the
completion of this treaty, do so because they say it has been ratified
by the President and Senate in open violation of the constitution of
the United States, and is, therefore, no treaty, but a nullity, an
instrument void _ab initio_, not a part of the supreme law of the land,
and consequently not binding upon Congress or the nation. They draw this
bold and extraordinary conclusion from the style and meaning of the
3d and 7th articles of the treaty. The former of these, they say, is
unconstitutional, because it proposes to annex a new territory, with its
inhabitants, to our present dominion; the latter, because it abolishes
for a term of years the discriminating duties of tonnage and impost
within the ceded territory, giving a preference there to France and
Spain, and leaving those duties unaltered in all the ports of the Union.
By the third article, it is agreed that the inhabitants of the ceded
territory shall be incorporated into the Union of the United States
as soon as possible, according to the principles of the federal
constitution, and be admitted to the enjoyment of all the rights,
advantages, and immunities of the citizens of the United States; and
in the mean time they shall be maintained and protected in the free
enjoyment of their liberty, property, and the religion which they profess.
On expounding this article, my colleague has declared that the President
and Senate have no power to acquire new territory by treaty, and he
argues that our people are to be for ever confined to their present
limits. This is an assertion directly contrary to the powers inherent
in independent nations, and contradictory to the frequent and allowed
exercise of that power in our own nation. We are constantly in the
practice of receiving territory by cession from the red men of the
West, the aborigines of our country. The very treaty mentioned in the
President’s Message, with the Kaskaskias Indians, whereby we have
acquired a large extent of land, would, according to this doctrine,
be unconstitutional; and so would all the treaties which add to the
size of our statute book, with the numerous tribes of the natives on
our frontiers. According to this construction, all our negotiations
so happily concluded with those people, whom we ever have uniformly
acknowledged as the sovereigns of the soil, are nugatory, and to be
holden for naught. He said, he was perfectly aware of the answer which
would be made, that we held all our national domain, under Great Britain,
by virtue of the treaty concluded at Paris in 1783. What, after all, was
the amount of that cession by England? Certainly not a conveyance of a
country which never was theirs, but rightfully belonged to the Indian
natives; for it was, in its true construction, merely a _quit claim_ of
the pretensions or title of the land which the English had obtained by
conquest and treaty from the French. By that negotiation, the United
States obtained a bare relinquishment of the claims and possessions of
those two powerful nations. But the paramount title of the original
inhabitants was not affected by this. However contemptuously the rights
of these rude and feeble tribes had been regarded by the Europeans,
their descendants in these States had considered them with recognition
and respect. Until the Indians sold their lands for an equivalent, the
humane and just principles of the American Government acknowledged
them to be the only legitimate owners. And the sovereignty acquired by
treaty or purchase to our Government was derived from the title which
the natives transferred to them as grantees in a fair bargain and sale.
Such, Mr. M. argued, were the rules of true construction, and these rules
admitted and acted upon by the Federal Government; and yet, according
to the novel doctrine of this day, every treaty with the natives for
parcels of their country, although hitherto deemed lawful, would be an
unconstitutional act. According to this notion, every treaty for lands,
held with the aborigines since the organization of the Government, was
a violation of the constitution. And thus this invaluable instrument,
this bulwark of our liberties, had been violated perhaps twenty times
or more, since we began to buy the surplusage of their hunting grounds.
The Indian tribes are as much aliens as any other foreign nations. Their
lands are as much foreign dominion as the soil of France or Spain. Yet we
have gone on to annex the territories which they sold us, to our present
territory, from the time we acquired independence, and no mortal, until
this debate arose, Mr. Chairman, has so much as thought that thereby a
breach of the constitution was made. My colleague is surely entitled to
great credit for his perspicuity in finding out that all our great and
wise predecessors in administering this Government have been plunderers
and constitution-breakers. But, sir, the just judgment on this subject
is, that the Presidents and Senate of the United States have heretofore
acted constitutionally in acquiring by purchase foreign dominions from
the alien Indians. And by a parity of reasoning, they have acted not
only constitutionally, but eminently for the interest of the country, in
buying Louisiana from the white men, its present sovereigns.
But, independent of correct principles and steady precedent in favor of
the acquirement of new territory, it may be worth while to mention a
few of the strange consequences which flow from the doctrine which the
gentlemen of the other side of the House contend for. According to their
reasoning, if by any force of the currents of the ocean, or any conflicts
of the winds and the waves, a new surface of earth should emerge from
the neighborhood of Cape Hatteras, it would be unconstitutional to take
possession of it. Yet it appears to me, sir, very like an absurdity to
say the United States would break their bond of union by erecting a
light-house on it. Suppose that, by volcanic action, islands should be
suddenly elevated from the bottom of the neighboring Atlantic, as they
have repeatedly risen from the depths of the Mediterranean, would it be
unconstitutional to take possession of them? So far from it, there would
on the other hand be a duty in the Government to assume the dominion of
all adjacent islands. Again; suppose for a moment that our present limits
were full of people, would it be unconstitutional to purchase additional
territory for them to settle upon? Must the hive always contain its
present numbers, and no swarm ever go forth? At this rate we should,
before a great lapse of time, arrive at a _plenum_ of inhabitants, and
if no new settlement could be obtained for them, the Chinese custom of
infanticide must be tolerated to get rid of those tender little beings
for whom food enough could not be procured, to rear them to manhood. And
thus, when this _maximum_ of population shall have arrived, there would
be no constitutional power to purchase and possess any of the waste lands
on this or the other side of the Mississippi, for them to spread and
thrive upon. A doctrine against which, he confessed, his understanding
revolted.
Our Government having in this manner the right of acquiring additional
territory, had very often exercised that right by actual purchases and
by possessions and settlements afterwards. The whole of the recent State
of Ohio and of the Indiana Territory was obtained and peopled in this
manner. And in the settlement of limits both on the side of Florida
and Nova Scotia, the principle had again and again been acted upon;
and, strange to tell, nobody, until this eventful time, had possessed
acuteness enough to find out the error.
But the gentleman from Connecticut, Mr. Chairman, (Mr. GRISWOLD,)
contends that even if we had a right to purchase soil, we have no
business with the inhabitants. His words, however, are very select; for
he said, and often repeated it, that the treaty-making power did not
extend to the admission of foreign nations into this confederacy. To this
it may be replied that the President and Senate have not attempted to
admit foreign nations into our confederacy. They have bought a tract of
land, out of their regard to the good of our people and their welfare.
And this land, Congress are called upon to pay for. Unfortunately for the
bargain, this region contains civilized and Christian inhabitants; and
their existence there, it is alleged, nullifies the treaty. The gentleman
construed the Constitution of the United States very differently from the
manner in which Mr. M. himself did. By the third section of the third
article of that instrument, it is declared, that Congress shall have
power to dispose of and make all needful rules and regulations respecting
the territory and other property of the United States, and nothing
therein contained shall be construed so as to prejudice any claim of the
United States, or of any particular State.
In the case of Louisiana no injury is done either to the nation or
to any State belonging to that great body politic. There was nothing
compulsory upon the inhabitants of Louisiana to make them stay and submit
to our Government. But if they chose to remain, it had been most kindly
and wisely provided, that until they should be admitted to the rights,
advantages, and immunities of citizens of the United States, they shall
be maintained and protected in the enjoyment of their liberty, property,
and the religion which they profess. What would the gentleman propose
that we shall do with them? Send them away to the Spanish provinces, or
turn them loose in the wilderness? No, sir, it is our purpose to pursue a
much more dignified system of measures. It is intended, first, to extend
to this newly acquired people the blessings of law and social order. To
protect them from rapacity, violence, and anarchy. To make them secure
in their lives, limbs, and property, reputation, and civil privileges.
To make them safe in the rights of conscience. In this way they are to
be trained up in a knowledge of our own laws and institutions. They
are thus to serve an apprenticeship to liberty; they are to be taught
the lessons of freedom; and by degrees they are to be raised to the
enjoyment and practice of independence. All this is to be done as soon
as possible; that is, as soon as the nature of the case will permit; and
according to the principles of the federal constitution. Strange! that
proceedings declared on the face of them to be constitutional, should
be inveighed against as violations of the constitution! Secondly, after
they shall have been a sufficient length of time in this probationary
condition, they shall, as soon as the principles of the constitution
permit, and conformably thereto, be declared citizens of the United
States. Congress will judge of the time, manner, and expediency of this.
The act we are now about to perform will not confer on them this elevated
character. They will thereby gain no admission into this House, nor into
the other House of Congress. There will be no alien influence thereby
introduced into our councils. By degrees, however, they will pass on
from the childhood of republicanism, through the improving period of
youth, and arrive at the mature experience of manhood. And then, they may
be admitted to the full privileges which their merit and station will
entitle them to.
Mr. J. RANDOLPH said that a sense of duty alone could have induced
him to rise at that late hour. He wished to call the attention of the
committee to a stipulation in the Treaty of London. [Here Mr. R. read
an extract from the third article of that treaty, whereby the United
States are pledged not to impose on imports in British vessels from
their territories in America, adjacent to the United States, any higher
duties than would be paid upon such imports, if brought into our Atlantic
ports in American bottoms.] In this case, he said, gentlemen could not
avail themselves of the distinction taken by his friend from Maryland
(Mr. NICHOLSON) between a Territory and a State, even if they were so
disposed--since the ports in question were ports of a State. The ports
of New York, on the Lakes, were as much ports of that State, as the city
of New York itself; they had their custom-house officers, were governed
by the same regulations as other ports,--duties were exacted at them;
and yet, under the article of the British Treaty which had been just
read, British bottoms could and did enter them subject to no higher
duties than were paid by American bottoms in the Atlantic ports. Mr.
R. said that he did not mean to affirm that this exemption made by the
Treaty of London was constitutional, so long as a distinction prevailed
between American and British bottoms in other ports. He had never given
a vote to carry that treaty into effect--but he hoped the gentlemen from
Connecticut--both of whom he believed had done so; one of whom, at least,
he knew had been a conspicuous advocate of that treaty--he hoped that
gentleman (Mr. GRISWOLD) would inform the committee how he got over the
constitutional objection to this article of the Treaty of London, which
he had endeavored to urge against that under discussion. How could the
gentleman, with the opinion which he now holds, agree to admit British
bottoms into certain ports, on the same terms on which American bottoms
were admitted into American ports, generally? thereby making that very
difference,--giving that very preference to those particular ports of
certain States, which he tells us cannot constitutionally be given to the
port of New Orleans--although that port is not within any State, and,
if his (Mr. GRISWOLD’s) doctrine be correct, not even within the United
States!
The gentleman from Connecticut professed a wish that this important
discussion should be conducted with moderation and candor. In this
sentiment he concurred. He was therefore altogether unprepared, after
this preamble, to hear the gentleman from Connecticut represent the
treaty in question as conceding the most valuable commercial privileges
to France and Spain, and thereby sapping the very foundation of our own
carrying trade. In the spirit of candor the stipulations in question
would be viewed, not as conceding advantages in trade to those nations,
but as securing them to ourselves. The article in question did indeed
profess to grant, for a limited time, to French and Spanish vessels,
laden with the products of their respective countries, admission into
the ports of the ceded territory, on equal terms with our own ships.
But, although nominally an advantage has been conceded to these nations,
substantially their situation was changed for the worse, and the benefit
in fact conferred on us. For what were our rights in these ports, and
what were theirs, setting aside the treaty? The treaty then had rendered
our situation more eligible and theirs less so. How then could gentlemen
declare that it was calculated to injure our carrying trade? when by it
our trade was put on the footing of absolute security, while that of
France and Spain was admitted under considerable restrictions, enjoying
in but one particular, and for twelve years only, an equality with ours.
Their trade, before on so superior a footing, had descended from its
pre-eminence in privilege, and given way to ours; and yet gentlemen warn
us of the destruction of our carrying trade, and commercial prosperity,
from the very source which has enlarged and secured both. The enemies
of the treaty, therefore, are the advocates of the trade of France and
Spain, and the enemies so far of our own; since, by retaining things in
their present posture, they would continue to those nations the superior
advantages which they now enjoy in the ports of Louisiana, they would
continue the restrictions which heretofore have fettered our commerce
to that country, and they would refuse to put our trade on a footing
superior to that of France and Spain.
On the subject of expediency, the gentleman had undervalued the country
west of the Mississippi, and had declared that he considered the barren
province of Florida as more important to us. Mr. R. asked if the country
west of the Mississippi were not valuable, according to the gentleman’s
own statement, since it afforded the means of acquiring Florida, which
he prized so highly, from Spain? He had no doubt of the readiness of
that power to relinquish Florida, in itself a dead expense to her--only
valuable as an out-work to her other possessions, and now insulated by
those of the United States--for a very small portion of the country which
we claimed in virtue of the treaty under discussion.
He denied the correctness of the doctrine advanced by the same gentleman,
that the stipulation entered into by France, in time of war, to raise the
Duke of Parma to the throne of Etruria, bound her to obtain a recognition
of that King from every power of Europe. All which concerned us in
that treaty had been recited in ours with France. By the Treaty of St.
Ildefonso His Catholic Majesty stipulates “to redeliver (_retroceder_)
to the French Republic, six months after the full and entire execution
of the conditions and stipulations herein relative to His Royal Highness
the Duke of Parma, the colony or province of Louisiana.” What these
stipulations were is certainly known only to the parties themselves,
for they never were officially made public, although we are at no loss
to conjecture them. Nor are we at all concerned whether France has or
has not complied with them. Because in a treaty executed at Madrid, six
months after, in March, 1801, they show that they consider the former
treaty as having passed the title to the country to France. The fifth
article is as follows:
“This treaty being in pursuance of that already concluded
between the First Consul and His Catholic Majesty, by which
the King delivers to France possession of Louisiana, the
contracting parties agree to carry into effect the said
treaty,” &c.
Spain, therefore, being satisfied as to the stipulations entered into by
France in the Treaty of San Ildefonso, declares herself in the second
treaty ready to redeliver the country to her whenever she was ready to
receive it, and Mr. R. said, he had it from high authority that the royal
mandate to that effect was in the hands of the Minister of the French
Republic near the United States, and would be forwarded to the existing
Government of Louisiana so soon as the treaty should be confirmed on our
part.
Having departed considerably from the particular point on which he wished
to be satisfied by the gentleman from Connecticut, who had spoken first,
(Mr. GRISWOLD,) he would again recall the attention of that gentleman
to the third article of the Treaty of London, and request that he would
reconcile its provisions to the doctrine which he had advanced on the
seventh article of the treaty then before the committee.
The committee now rose. Mr. SPEAKER resumed the Chair, and Mr. DAWSON
reported that the committee had, according to order, had the said
message, treaty, conventions, and motion, under consideration, and come
to several resolutions thereupon; which he delivered in at the Clerk’s
table, where the same were read, as follows:
1. _Resolved_, That provision ought to be made for carrying
into effect the treaty and conventions concluded at Paris on
the thirtieth of April, one thousand eight hundred and three,
between the United States of America and the French Republic.
2. _Resolved_, That so much of the Message of the President,
of the twenty-first instant, as relates to the establishment
of a Provisional Government over the territory acquired by the
United States, in virtue of the treaty and conventions lately
negotiated with the French Republic, be referred to a select
committee; and that they report by bill, or otherwise.
3. _Resolved_, that so much of the aforesaid conventions as
relates to the payment, by the United States, of sixty millions
of francs to the French Republic, and to the payment, by the
United States, of debts due by France to citizens of the United
States, be referred to the Committee of Ways and Means.
The House proceeded to consider the said resolutions at the Clerk’s
table: Whereupon the first resolution being again read, was, on the
question put thereupon, agreed to by the House--yeas 90, nays 25, as
follows:
YEAS.--Willis Alston, jr., Nathaniel Alexander, Isaac Anderson,
John Archer, David Bard, George Michael Bedinger, Phanuel
Bishop, William Blackledge, John Boyle, Robert Brown, William
Butler, George W. Campbell, Levi Casey, Martin Chittenden,
Clifton Claggett, Thomas Claiborne, Joseph Clay, Matthew
Clay, John Clopton, Frederick Conrad, Jacob Crowninshield,
Richard Cutts, John Dawson, William Dickson, John Earle,
Peter Early, James Elliot, John W. Eppes, William Eustis,
William Findley, John Fowler, Peterson Goodwyn, Edwin Gray,
Andrew Gregg, Wade Hampton, John A. Hanna, Josiah Hasbrouck,
Joseph Heister, William Hoge, David Holmes, Samuel Hunt, John
G. Jackson, Walter Jones, William Kennedy, Nehemiah Knight,
Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord,
William McCreery, David Meriwether, Samuel L. Mitchill,
Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New,
Thomas Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah
Palmer, John Patterson, Samuel D. Purviance, John Randolph,
jun., Thomas M. Randolph, John Rea of Pennsylvania, John Rhea
of Tennessee, Jacob Richards, Cæsar A. Rodney, Erastus Root,
Thomas Sammons, Thomas Sanford, Ebenezer Seaver, John Smilie,
John Smith of New York, John Smith of Virginia, Richard
Stanford, Joseph Stanton, John Stewart, David Thomas, Philip R.
Thompson, John Trigg, Philip Van Cortlandt, Joseph A. Varnum,
Daniel C. Verplanck, Matthew Walton, John Whitehill, Marmaduke
Williams, Richard Winn, Joseph Winston, and Thomas Wynns.
NAYS.--William Chamberlin, Manasseh Cutler, Samuel W. Dana,
John Davenport, Thomas Dwight, Calvin Goddard, Thomas Griffin,
Gaylord Griswold, Roger Griswold, Seth Hastings, David Hough,
Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston, Nahum
Mitchill, Thomas Plater, Joshua Sands, John Cotton Smith,
William Stedman, James Stephenson, Samuel Taggart, Samuel
Tenney, Samuel Thatcher, Peleg Wadsworth, and Lemuel Williams.
The second resolution being again read, and amended at the Clerk’s table,
was, on the question put thereupon, agreed to by the House, as follows:
_Resolved_, That so much of the Message of the President, of
the twenty-first instant, as relates to the occupation and
establishment of a Provisional Government over the Territory
acquired by the United States, in virtue of the treaty and
conventions lately negotiated with the French Republic, be
referred to a select committee; and that they report by bill,
or otherwise.
_Ordered_, That Mr. JOHN RANDOLPH, jr., Mr. JOHN RHEA, of Tennessee, Mr.
HOGE, Mr. GAYLORD GRISWOLD, and Mr. BEDINGER, be appointed a committee,
pursuant to the said resolution.
The third resolution reported from the Committee of the whole House,
being again read, was agreed to by the House.
THURSDAY, October 27.
Another member, to-wit, ABRAM TRIGG, from Virginia, appeared, produced
his credentials, was qualified, and took his seat in the House.
_Louisiana Treaty._
The House resolved itself into a Committee of the Whole on the bill from
the Senate, entitled, “An act to enable the President of the United
States to take possession of the territories ceded by France to the
United States, by the treaty concluded at Paris on the thirtieth of April
last, and for other purposes.”
The bill having been read, by paragraphs, as follows:
_Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That the
President of the United States be, and he is hereby, authorized
to take possession of and occupy the territories ceded by
France to the United States, by the treaty concluded at Paris,
on the thirtieth day of April last, between the two nations;
and that he may for that purpose, and in order to maintain in
the said territories the authority of the United States, employ
any part of the army and navy of the United States, and of the
force authorized by an act passed the third day of March last,
entitled, “An act directing a detachment from the militia of
the United States, and for erecting certain arsenals,” which he
may deem necessary; and so much of the sum appropriated by the
said acts as may be necessary, is hereby appropriated for the
purpose of carrying this act into effect; to be applied under
the direction of the President of the United States.
SEC. 2. _And be it further enacted_, That, until Congress shall
have made provision for the temporary government of the said
territories, all the military, civil, and judicial powers,
exercised by the officers of the existing government of the
same, shall be vested in such person and persons, and shall be
exercised in such manner, as the President of the United States
shall direct.
Mr. J. RANDOLPH said he was apprised that the bill was of such a nature
as seemed to delegate to the President of the United States a power, the
exercise of which was intended to have but a short duration; he was also
aware, that some such power was necessary to be vested in the Executive,
to enable him to take possession of the country ceded by France. But he
could conceive no cause for giving a latitude, as to time, so extensive
as that allowed by the second section, which says, that “until Congress
shall have made provision for the temporary government of the said
territories, all the military, civil, and judicial powers, exercised by
the officers of the existing government of the same, shall be vested
in such person or persons, and shall be exercised in such manner, as
the President of the United States shall direct.” If we give this power
out of our hands, it may be irrevocable until Congress shall have made
legislative provision; that is, a single branch of the Government, the
Executive branch, with a small minority of either House, may prevent
its resumption. He did not believe that, under any circumstances, it
was proper to delegate to the Executive a power so extensive; but if
proper under certain circumstances, he was sure it was improper under
present circumstances. As he conceived it proper to deal out power to
the Executive with as sparing a hand as was consistent with the public
good, he should move an amendment to substitute in the place of the words
“Congress shall have made provision for the temporary government of the
said territories”--these words, “the expiration of the present session
of Congress, unless provision for the temporary government of the said
territories be sooner made by Congress.” So that if Congress shall
make provision for the government of the territory at any time during
the session, the power of the President will cease, and at any rate
at the expiration of the session. In other words, this amendment will
compel Congress to take early measures for reducing this enormous power,
delegated to the Executive, by the establishment of a government for the
people of Louisiana.
Mr. R. GRISWOLD moved to strike out the whole of the second section,
which would supersede the motion of the gentleman from Virginia. He made
this motion to obtain an explanation respecting the nature and extent
of the delegated power. That section provides “that until Congress
shall have made provision for the temporary government of the said
territories, all the military, civil, and judicial powers, exercised by
the officers of the existing government of the same, shall be vested in
such manner, as the President of the United States shall direct.” I wish
to know, said Mr. Griswold, whether any gentleman can inform me what the
military, civil, and judicial powers, exercised by the officers of the
existing province are; for we are about to confirm them, and direct their
execution by the authorities of the United States.
It is probable that some of them may be inconsistent with the
Constitution of the United States. We have certain restrictions on powers
exercised under it. For instance, that the _habeas corpus_ shall not
be suspended in cases of invasion or rebellion, and a variety of other
restraints. It is for this reason that I think we ought to have some
knowledge of the powers exercised in Louisiana, before we confirm them in
the lump; and in order to obtain this information, I move to strike out
the section.
Mr. ELLIOT rose to second the motion of the gentleman from Connecticut,
and to express his coincidence in the sentiments of that gentleman on
this subject. He would never consent to delegate, for a single moment,
such extensive powers to the President, even over a Territory. Such a
delegation of power was unconstitutional. If such a provision as that
contemplated by the section were necessary, it became Congress itself to
enter upon the task of legislation.
Mr. J. RANDOLPH had hoped that some other member would have given the
gentleman from Connecticut the satisfaction he asked in relation to the
provisions of the section proposed to be stricken out. No one having
risen, he would do it himself as well as he was able. That gentleman
asks whether we know the civil, military, and judicial powers that
subsist in Louisiana; and contends that it is necessary we should know
them before they are transferred to the Executive of the United States.
If the section were to stand as it now does, Mr. R. said he would be
as unwilling as the gentleman from Connecticut to agree to it. But,
with the proposed limitation, he saw no substantial objection to it. He
was one of those who did not know with precision what the subsisting
civil, military, and judicial powers exercised in Louisiana were; and
yet he saw not the difficulty which the gentleman had stated, as to the
temporary transfer of the powers to the Executive with the limitation
proposed--and wherefore? Because, in the nature of things, it was almost
impossible to take possession of the country without the exercise of such
powers at some point of time, and if they should be exercised but for a
single moment, such exercise would be as hostile to the principles of the
gentleman as the exercise of them for a whole year.
I ask, said Mr. R., whether if the country should be taken possession
of on the principles advocated by the gentleman on a former day, these
powers would not all have attached to the Executive? Suppose, instead
of assuming the civil government of the territory, it had been taken
possession of by storm, by an army of 40 or 50,000 soldiers--will the
gentleman contend, that under such circumstances, the privilege of the
_habeas corpus_ or trial by jury would have been invaded? Undoubtedly
not. If the gentleman will advert with precision to the first section, he
will perceive that it is contemplated to take possession in such a manner
as will give the United States security in that possession. For though
we might not doubt the disposition of the Government of France to give
us a secure possession, or apprehend difficulty from any other quarter,
yet it would be recollected that there were citizens or subjects in the
territory requiring some government. It was not impossible that on taking
possession there may be some turbulent spirits, who, having at heart the
advancement of personal schemes, may be disposed to resist. It would be
unwise then in Congress to delay making the requisite provision, until
necessity claimed it, and until, perhaps, after Congress had adjourned.
Gentlemen will see the absolute necessity of the path chalked out by
the Senate. They will see the necessity of the United States taking
possession of the country in the capacity of sovereigns, in the same
extent as that of the existing government of the province. After having
taken possession, and being in the secure enjoyment of the country, it
will be extremely proper to guard against any apprehended Executive
invasion of right. This step will then be politic, and it will be
observed that the section as amended enjoins this duty upon Congress. If,
however, the gentleman from Connecticut will show us any way in which
the country may be taken possession of, with security, and by which the
people may enjoy all the rights and franchises of citizens of the United
States immediately, I shall be happy to give it the sanction of my vote.
But to my mind this appears impossible.
Mr. GRISWOLD thought it extraordinary that the gentleman from Virginia
should call upon him to propose a plan for avoiding the difficulties
that would apparently result from the system proposed by the bill, when
it had only that day been laid upon their tables, and had been yesterday
refused to be referred to a select committee; and of consequence, no
time for reflection had been allowed. Under these circumstances, it was
indeed extraordinary that he should be expected to propose a plan. He
confessed he was unable to offer any. To do it would doubtless require
time and deliberation. It was sufficient for him that the bill infringed
the constitution. By the second section it is proposed to transfer to
the President of the United States all the powers, civil, military, and
judicial, exercised at present in that province. What are those powers?
No gentleman is able to inform me. It may be presumed that they are
legislative; the President, therefore, is to be made the legislator of
that country; that they are judicial, the President, therefore, is to be
made judge; that they are executive, and so far they constitutionally
devolve on the President. Hence, we are about making the President the
legislator, the judge, and the executive of this territory. I do not,
said Mr. G., understand that, according to the constitution, we have a
right to make him legislator, judge, and executive, in any territory
belonging to the United States. Though, therefore, on this occasion, I
feel no jealousy of the abuse of the powers conferred on the President,
yet I cannot agree to them, because I consider them repugnant to the
constitution.
The argument that the powers are necessary, though unconstitutional,
is no argument with me. If gentlemen can so explain the section, as to
show to the satisfaction of the committee that it is competent to this
House to transfer to the President all these powers, I shall have no
objection to the section; but until this is done, it is my duty to vote
for striking it out. And though it is impossible for me, at this moment,
to devise a plan for overcoming these difficulties, yet I trust, if time
be allowed, there will be found wisdom enough in the committee to devise
one. To the first section, authorizing the taking possession of the
country, so far as I can understand it, I can see no objection.
Mr. NICHOLSON was opposed to striking out the second section, as he did
not perceive the evils contemplated by the gentleman from Connecticut.
The question is, whether we shall take immediate possession of this
country, or wait till this body shall have time to form such a government
as shall be hereafter likely to render the people happy, under laws
according to the provisions of the constitution? I think, said Mr. N.,
it will be injudicious to delay taking the possession, until such a
government shall be formed. The only question then that can be started
is, whether the second section of this bill violates the constitution. On
this point I differ entirely from the gentleman from Connecticut. I do
not see in it any violation of the constitution. The gentleman supposes
that by adopting the provisions of the second section we shall vest all
the civil, military, and judicial powers of the existing Government of
Louisiana in the President. But it clearly is not so. We vest in him the
appointment of the persons who shall exercise these powers, but we do
not delegate to him the exercise of the powers themselves. Is there any
difference between this, and the provisions of the ordinance of 1787,
which relates to territorial governments? By that ordinance, and I have
never heard its constitutionality questioned, all the civil, military,
and judicial powers are vested in such persons as the President may
appoint.
Mr. MITCHILL expressed his wish that the section of the bill might stand.
To strike it out would be to make void all the proceedings respecting the
province of Louisiana, on which Congress had been engaged with so much
care and diligence. We had purchased the country, and made arrangements
to pay for it; and now, with the consent of France, possession is to be
taken; when behold! an objection is made to that part of the intended
statute which confers on the President the power to occupy and hold it
peaceably for the nation.
But, let it be examined fairly what Congress are meditating to do. The
third section of the fourth article of the constitution contemplates
that _territory_ and other _property_ may belong to the United States.
By a treaty with France the nation has lately acquired title to a new
_territory_, with various kinds of public _property_ on it or annexed to
it. By the same section of the constitution, Congress is clothed with
the power to dispose of such _territory_ and _property_, and to make all
needful rules and regulations respecting it. This is as fair an exercise
of constitutional authority as that by which we assemble and hold our
seats in this House. To the title thus obtained, we wish now to add
the possession; and it is proposed that for this important purpose the
President shall be duly empowered. There is no person in the nation to
whom this can be so properly confided as to the President.
Mr. DANA said if the amendment proposed by the gentleman from
Pennsylvania were inserted, it might imply that we may pass laws that
were unconstitutional; it was, therefore, superfluous. It is objected
to the scope of the second section, that it is unconstitutional; insert
the amendment and it nullifies it. The gentleman from New York (Mr.
MITCHILL) has referred to a subject with which he is well conversant. He
is correct in stating that the formal style of the English acts is in
the name of the King. In the formal style of the acts of Parliament, the
King is legislator; but will it be inferred from this circumstance that
he is the real legislator? The gentleman is too well acquainted with the
constitution and laws of that country, not to know that the King, though
nominally the dispenser of justice, cannot himself sit upon the bench,
and that this has been the case since the act of settlement. He might, in
support of this position, refer to the declaration of a celebrated Chief
Justice of England, who had said that the honor of the Crown had nothing
to do with the courts of justice.
The gentleman is equally unfortunate in his remarks on the power of
Congress to make rules for the government of a Territory. It is objected
to this, that in this case you make no laws at all. Is it to make laws,
to say a man may do as he pleases? The proposed government is not even
provisional or circumscribed. Insufficient also is any argument deducible
from the ordinance establishing territorial governments. He presumed the
ordinance alluded to was that of 1787. Under that ordinance the President
is authorized to appoint the judges of the Territory; but once appointed,
they hold their offices during good behavior. Who, under that ordinance,
make the laws? Neither the judges nor the President. No laws can be
accepted but such as have received the sanction of a representative body.
What is proposed by the bill? That all powers, military, civil, and
judicial, exercised by the officers of the existing government, shall
be vested in such persons, and shall be exercised in such manner as the
President shall direct. He may, under this authority, establish the whole
code of Spanish laws, however contrary to our own; appoint whomsoever
he pleases as judges, and remove them according to his pleasure; thus
uniting in himself all the power, legislative, executive, and judicial.
This, though a complete despotism, gentlemen may perhaps say is
necessary. If so, let the military power be exercised by the President as
commander-in-chief of the armies.
Mr. EUSTIS said it was possible the bill under consideration might in its
details be objectionable, but in principle it was certainly sound. The
Government of the United States has a constitutional right to acquire
territory, and they have consequently a right to take possession of it
when acquired. The taking possession of it was not only the right, but
the duty of the Government. And how is this to be effected? Will any
gentleman venture to propose a delay until Congress shall have passed a
new code of laws? Are gentlemen, at this late day, to be informed that
this would be to throw away one of the most valuable acquisitions made by
our country since the adoption of the constitution, or the Declaration
of Independence? As the gentleman, last speaking, rightly observes, the
entire government of Spain ceases on our taking possession. Are we then
to abandon the people to anarchy?
As to the extent of the power vested in the Executive, it arises from
necessity. This is a new case altogether. There is no doubt that on
many particular subordinate points, respecting the secure possession of
this country, difficulties may present themselves. But Mr. E. presumed
and expected that the same wisdom that acquired it, would preside over
the councils of the nation to meet and overcome those difficulties. The
second section of the bill contemplates the transfer to officers of the
United States, of the same powers now exercised. It may be that the
exercise of all these powers will not be necessary; while it is possible
that others may be necessary. There may be difficulties of various
kinds. He should name none. But as they arise, it will be the duty of the
Government to be prepared to meet them. He would, therefore, wish this
act rather to increase than curtail them; and that the President should
be authorized not only to continue all necessary existing powers, but
to institute such other powers as may be necessary for the well-being
of the Territory. Till when? Until this House and the other branch of
the Legislature shall make the necessary laws. The powers delegated by
the bill are imposed by the imperious circumstances of the case. What if
forcible possession shall prove necessary, and the innocent inhabitants
should be slaughtered, through a want of the powers necessary to preserve
tranquillity and good order; whose will, under such circumstances, will
be the governing one? Will not the President, in such event, have all the
powers now given him?
Mr. R. GRISWOLD.--The powers proposed to be conferred by the gentleman
are without limits. It may be necessary for the welfare of the people,
to secure their religion. The President may be, therefore, constituted
grand inquisitor, he may also be made a king, and likewise a judge, for
the good of the people. I am not, said Mr. G., willing myself to give
him such extensive powers. I can, however, well account for certain
gentlemen urging on this occasion the old French argument of “imperious
necessity.” But such a pretext can never justify me in giving a vote that
will violate the constitution. I can, in truth, see no such necessity, as
provision can be made for admitting these people to the enjoyment of all
the privileges stipulated by the treaty, without involving a violation of
the constitution. Gentlemen may criminate, as they please, the motives of
those who are for restraining this extension of executive power; but I
trust, whatever may be the feelings of gentlemen, that the committee will
not be impressed with the same opinion entertained by them; but that if
they consider this delegation of power as repugnant to the constitution,
they will not agree to it, or, in other words, to the investiture of the
President with absolute power over this province. If, on the other hand,
they think the delegation is constitutional, they will feel no repugnance
to agreeing to it; because, as I observed before, the power will be of
short duration, and will not, probably, be abused.
As to the idea of some gentlemen, that this territory, not being a part
of the United States, but a colony, and that therefore we may do as we
please with it, it is not correct. If we acquire a colony by conquest
or purchase--and I believe we may do both--it is not consistent with
the constitution to delegate to the President, even over a colony thus
acquired, all power, legislative, executive, and judicial; for this
would make him the despot of the colony. Mr. G. concluded his remarks
by observing that he had no jealousy of the abuse of this power by the
President; but not being, in his opinion, authorized by the constitution,
he could not agree to vote for it.
Mr. SMILIE said, this subject struck him differently from other
gentlemen. If it appeared clear to him that the constitutional right to
delegate the powers contemplated by the second section did not exist, he
should vote against it. But he entertained no doubt on this point. He
knew that it had been doubted whether the constitution authorized the
Government of the United States to acquire territory; but those doubts
were this day abandoned. He agreed in opinion with the gentleman from
Massachusetts, (Mr. VARNUM,) that the Constitution of the United States
did not extend to this territory any further than they were bound by
the compact between the ceding power and the people. On this principle
they had a right, viewing it in the light of a colony, to give it such
government as the Government of the United States might think proper,
without thereby violating the constitution; when incorporated into the
Union, the inhabitants must enjoy all the rights of citizens. He would
thank gentlemen to show any part of the constitution that extends either
legislative, executive, or judicial power, over this territory. If none
such could be shown, it must rest with the discretion of the Government
to give it such a system as they may think best for it. At the same time,
Mr. S. said, he would pledge himself to be among the first to incorporate
the territory in the Union, and to admit the people to all the rights of
citizens of the United States.
Mr. RODNEY.--When a constitutional question is made, and constitutional
objections urged by a respectable member of this House, they shall always
receive from me a respectful attention. On this occasion I shall endeavor
to answer the objections, and remove the doubts entertained by some
gentlemen. I believe we shall find that, by adopting the second section
of the bill under consideration, we shall not infringe the constitution
in the remotest degree. No person is more opposed to the extreme of
absolute and unlimited power, or to vesting in any man that authority
which, by not being circumscribed within known bounds, may be easily
abused. No man can be more opposed to the exercise by the President of
powers exercised by the Spanish inquisition, and authorized by other
Governments. But cases may occur where, for a moment, powers to which,
without an absolute necessity, no one would agree, become necessary to be
vested in some department of the Government; and I am in favor of this
section for the reasons assigned by my friend from Virginia, to wit, that
the exercise of the powers delegated will be confined to a short space,
and will be of no further duration than shall be necessary to obtain the
end of a secure possession of the Territory.
The United States, it is acknowledged, have a right to extend their
territory beyond that which they possessed when the constitution was
formed. If, then, there exist the right to acquire territory, there is
a consequence of the laws that pervade all civilized nations, which
will show not only the constitutionality but the propriety also of this
section. It is a received principle of the law of nations, that, when
territory is ceded, the people who inhabit it have a right to the laws
they formerly lived under, embracing the whole civil and criminal code,
until they are altered or amended by the country to whom the cession is
made. This is the received principle of the law of nations, and operates
wherever the right to acquire territory is previously given. I will
put a plain case, on the ground so commonly of late resorted to, that
of acquiring territory by war. The right to make war is vested by the
constitution in the Government of the United States. Suppose we had gone
down the Mississippi, and favored the wishes of some of our citizens.
Would not gentlemen, in that case, have acknowledged that we should have
possessed the right of laying contributions? Should we not have had the
right of saying to those who exercised the powers of government in that
country, “Begone! We will make new arrangements; the powers of government
shall be exercised by such particular organs as we like. Your laws and
your religion shall be preserved; but your officers shall be replaced by
ours.” Under the laws of nations we should have enjoyed all these powers.
But, independent of this power conferred by the law of nations, I am
inclined to think the provisions of the constitution apply to this
case. There is a wide distinction between States and Territories, and
the constitution appears clearly to indicate it. By examining the
constitution accurately, it will be found that the provision relied upon
by the gentleman from Connecticut will not avail to support his argument.
It will appear that it is to operate in the case of States only. By
the third section of the fourth article of the constitution, it is
declared that “the Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this constitution shall
be so construed as to prejudice any claims of the United States or any
particular State.”
This provision does not limit or restrain the authority of Congress with
respect to Territories, but vests them with full and complete power to
exercise a sound discretion generally on the subject. Let us not be told
this power, from its greatness, is liable to abuse. If arguments are
drawn from the abuse against the use of power, I know no power which may
not be abused, and it will follow that the same arguments that are urged
against the use of this power may be urged against the use of all power.
We may be told that, in the government of the North-western Territory,
there are certain fixed rules established. But by a recurrence to the
ordinance for the government of that Territory, and to the laws of
Congress subsequently made, it will be seen that Congress have conceived
themselves to be possessed of the right, and have actually exercised the
power, to alter the Territory, by adding to or taking from it as they
thought proper, and by making rules variant from those under which it was
originally organized.
In the Territories of the United States, under the ordinances of
Congress, the governor and the judges have a right to make laws. Could
this be done in a State? I presume not. It shows that Congress have a
power in the Territories, which they cannot exercise in States; and that
the limitations of power, found in the constitution, are applicable to
States and not to Territories.
The question was then put on striking out the second section, and
lost--ayes 30.
The bill was ordered to be engrossed for a third reading to-morrow.
FRIDAY, October 28.
_Louisiana Treaty._
The bill sent from the Senate, entitled “An act to enable the President
of the United States to take possession of the territories ceded by
France to the United States, by the treaty concluded at Paris on the
thirtieth of April last, and for the temporary government thereof,”
together with the amendments agreed to yesterday, was read the second
time, as follows:
_Be it enacted, by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That the
President of the United States be, and he is hereby, authorized
to take possession of and occupy the territory ceded by France
to the United States, by the treaty concluded at Paris on the
thirtieth of April last, between the two nations; and that he
may for that purpose, and in order to maintain in the said
territories the authority of the United States, employ any
part of the Army and Navy of the United States, and of the
force authorized by an act passed the third day of March last,
entitled ‘An act directing a detachment from the militia of the
United States, and for erecting certain arsenals,’ which he
may deem necessary, and so much of the sum appropriated by the
said act as may be necessary, is hereby appropriated for the
purpose of carrying this act into effect; to be applied under
the direction of the President of the United States.
SEC. 2. _And be it further enacted_, That, until the expiration
of the present session of Congress, or unless provision
be sooner made for the temporary government of the said
territories, all the military, civil, and judicial powers
exercised by the officers of the existing Government of the
same, shall be vested in such person and persons, and shall be
exercised in such manner as the President of the United States
shall direct, for maintaining and protecting the inhabitants of
Louisiana in the full enjoyment of their liberty, property, and
religion.
On the question, Shall the bill pass? the yeas and nays were required,
and stood--yeas 89, nays 23, as follows:
YEAS.--Willis Alston, Isaac Anderson, John Archer, David Bard,
George M. Bedinger, Samuel Bishop, William Blackledge, John
Boyle, Robert Brown, William Butler, George W. Campbell, John
Campbell, Levi Casey, Thomas Claiborne, Joseph Clay, Matthew
Clay, John Clopton, Frederick Conrad, Jacob Crowninshield,
Richard Cutts, John Dawson, William Dickson, John Earle, Peter
Early, John W. Eppes, William Eustis, William Findlay, John
Fowler, Peterson Goodwyn, Andrew Gregg, Wade Hampton, John
A. Hanna, Josiah Hasbrouck, Daniel Heister, Joseph Heister,
William Hoge, James Holland, David Holmes, Benjamin Huger,
Walter Jones, William Kennedy, Nehemiah Knight, Michael
Leib, John B. C. Lucas, Matthew Lyon, Andrew McCord, William
McCreery, David Meriwether, Samuel L. Mitchill, Nicholas R.
Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas
Newton, jr., Joseph H. Nicholson, Gideon Olin, Beriah Palmer,
John Patterson, Samuel D. Purviance, John Randolph, jr., Thomas
M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee,
Jacob Richards, Cæsar A. Rodney, Erastus Root, Thomas Sammons,
Thomas Sanford, Ebenezer Seaver, John Smilie, John Smith of New
York, John Smith of Virginia, Richard Stanford, Joseph Stanton,
John Stewart, David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B.
Varnum, Daniel C. Verplanck, Matthew Walton, John Whitehill,
Marmaduke Williams, Richard Winn, Jos. Winston, and Thomas
Wynns.
NAYS.--William Chamberlain, Martin Chittenden, Clifton
Claggett, Samuel W. Dana, John Davenport, Thomas Dwight, James
Elliot, Calvin Goddard, Thomas Griffin, Gaylord Griswold, Roger
Griswold, Seth Hastings, Joseph Lewis, jr., Thomas Lewis, Henry
W. Livingston, Nahum Mitchell, Thomas Plater, Joshua Sands,
John Cotton Smith, William Stedman, James Stephenson, Samuel
Tenney, and Samuel Thatcher.
SATURDAY, October 29.
_Mourning for Edmund Pendleton._
Mr. EUSTIS rose and observed, that within a few days past the House were
called upon to take notice of an event which, perhaps, would be more
interesting to posterity than to the present generation; the death of one
of those illustrious patriots who, by a life devoted to his country, had
bequeathed a name and an example to posterity which he would not attempt
to describe. He had information that another of these sages, EDMUND
PENDLETON, of Virginia, had paid the last tribute to nature.
On this occasion he begged leave to offer to the House the following
resolution:
_Resolved_, That this House, impressed with a lively sense
of the important services rendered to his country by EDMUND
PENDLETON, deceased, will wear a badge of mourning for thirty
days, as an emblem of their veneration for his illustrious
character, and of their regret that another star has fallen
from the splendid constellation of virtue and talents which
guided the people of the United States in their struggle for
Independence.
The resolution was immediately taken up, and agreed to--ayes 77.
WEDNESDAY, November 2.
_Road to Natchez and New Orleans._
Mr. MITCHILL called the attention of the House to a subject of
considerable importance, growing out of our possessions on the
Mississippi. He stated that the mail to Natchez was at present
transported by a route circuitous and difficult of performance. The
Cherokee country, which constituted a part of it, was so destitute of
water and articles of subsistence, as to render it necessary for the
conveyor of the mail to carry whatever himself or his horses required.
Even the water used was carried in goat skins. A great portion of the
country was likewise infested with robbers. The measure he proposed was
to inquire by what means the carriage of the mail to the Natchez and New
Orleans could be facilitated, so as to abridge the time now consumed, and
lessen the dangers and difficulties attending the transportation. Mr.
M. believed a route might be pursued whereby four hundred miles could
be saved in the present distance to the Natchez. Mr. M. desired such an
inquiry to be made into the means of accomplishing this important object,
as should, while it tended to promote the great political and commercial
interests of the country, convince the Indian tribes that our object was
not to invade their rights. He further observed, that the usual voyage
to New Orleans was about thirty days. If the route by land should be
improved, that place might be probably reached in ten days. He therefore
offered the following resolution:
_Resolved_, That the Committee on Post Offices and Post Roads
be directed to inquire by what means the mail may be conveyed
with greater facility and dispatch, than it is at present,
between the City of Washington, and the Natchez and New Orleans.
Agreed to without a division.
MONDAY, November 7.
Another member, to wit, OLIVER PHELPS, from New York, appeared, produced
his credentials, was qualified, and took his seat in the House.
THURSDAY, November 10.
Another member, to wit, JAMES GILLESPIE, from North Carolina, appeared,
produced his credentials, was qualified, and took his seat in the House.
MONDAY, November 14.
A petition of Andrew Moore, of the State of Virginia, was presented to
the House and read, complaining of an undue election and return of Thomas
Lewis, to serve as a member in this House, for the district composed of
the counties of Greenbrier, Kenawha, Monroe, Botetourt, and Rockbridge,
in the said State.
_Ordered_, That the said petition be referred to the Committee of
Elections.
TUESDAY, November 15.
Another member, to wit, GEORGE TIBBITS, from New York, appeared, produced
his credentials, was qualified, and took his seat in the House.
THURSDAY, November 17.
_Postage of Newspapers._
Mr. G. W. CAMPBELL.--There is a subject to which I wish to draw
the attention of the House. It is, sir, the postage charged on the
transportation of newspapers in the mail. This subject I conceive of
sufficient importance to meet the attention of this House, as it affects
the means of acquiring political information in the different parts of
the Union.
I presume it will not be denied, that the most effectual way of
rendering the people at large useful citizens, and of securing to them
their liberties and independence, would be to increase the sources of
information, make them well acquainted with their political rights,
and also with the proceedings of their Government. So long as they are
informed on those subjects, so long they will be disposed to acquiesce
in, and support such measures as may be calculated to promote the general
good, but will be prepared to resist any attempts that may be made to
infringe their rights by those in power. It is believed that newspapers
are the most general and effectual means of disseminating political
information among the citizens at large; and it ought therefore to be the
object of Government to facilitate their circulation as much as possible.
I conceive, sir, the most direct way to attain this object would be to
cause them to be transported in the mail free of postage.
The moneys arising from the postage on newspapers cannot certainly
be such an object to Government, as would justify the principle of
laying a tax on information, or pursuing any measures that would have
a tendency to diminish, in the least degree, the means by which it may
be acquired. It seems to be admitted by all those who have considered
the subject, that the Post Office establishment was never intended as
a paramount source of revenue; and therefore we find that the moneys
arising therefrom have not generally been taken into the calculation,
in the estimates of our finances. The whole amount of the postage on
newspapers I believe to be very inconsiderable, as an item of revenue;
and a great proportion of it, as I am informed, is given to the deputy
postmasters for keeping the accounts of such postage, and for collecting
the same: and if information is to be relied upon, many of those deputy
postmasters, who are allowed about fifty per cent on the amount of
postage thus collected, are of opinion that the labor of keeping those
accounts and of collection, exceeds this compensation; and they would
be well satisfied that no such postage existed. If this statement be
correct, it will go a great way to prove the measure impolitic.
But perhaps it may be said that the postage to be collected on
newspapers, has a tendency to ensure their arrival at the places of
destination, and the delivery of them to those to whom they are directed.
This, upon investigation, will, I believe, be found not to be the case.
It is made the duty of the postmasters, by law, to forward and deliver
newspapers, as well as letters,--they act upon oath, and if a sense of
propriety in their conduct, and the obligation of an oath, would not
induce them to perform their duty in this respect, it cannot be expected
that the paltry emolument accruing to them from their part of one cent,
or one and a half cents on each newspaper, would have that effect;
and even this sum must be still less relied upon, as an inducement,
when it is considered, as already stated, that the labor required in
keeping accounts for this purpose and in collection, is not in reality
compensated by the sum received. In order, therefore, to bring this
subject fairly before the House, I move that the House come to the
following resolution:
_Resolved_, That so much of the act to establish post-offices
and post roads in the United States as charges a postage on the
transmission of newspapers ought to be repealed.
_Ordered_ to lie on the table.
FRIDAY, November 18.
Two other members, to wit: JOSEPH BRYAN, and SAMUEL HAMMOND, from
Georgia, appeared, presented their credentials, were qualified, and took
their seats in the House.
MONDAY, November 21.
Two other members, to wit: SIMEON BALDWIN and BENJAMIN TALLMADGE, from
Connecticut, appeared, produced their credentials, were qualified, and
took their seats in the House.
WEDNESDAY, November 23.
_Repeal of the Bankrupt Law._
The House resolved itself into a Committee of the Whole, on the
resolution, offered by Mr. NEWTON, for repealing the Bankrupt law.
The resolution was advocated by Messrs. NEWTON, ELLIOT, SMILIE, HASTINGS,
STANFORD, and RANDOLPH; and opposed by Messrs. JACKSON, EARLY, SKINNER,
and EUSTIS.
The advocates of repeal observed that though the resolution had lain
on the table for a considerable time, purposely with a view to collect
public opinion, no remonstrance hostile to it had been received from any
part of the Union, and that this circumstance indicated the unfavorable
sentiment entertained of the bankrupt system; and that even among those
most materially interested in its provisions, a dead silence prevailed.
Some gentlemen were averse to the repeal, inasmuch as the law would
expire by its own limitation, in a few years; but the House should
recollect that in the mean time they were responsible for all its evils
and iniquities. If, too, it should be suffered to die a natural death,
the inevitable effect would be that those who are now struggling to avoid
bankruptcy will precipitate themselves into such a situation as to avail
themselves of its benefit.
With regard to the principle of the present bankrupt system, and probably
of any other bankrupt system that could be devised, it was unjust,
inasmuch as it favored one class of citizens, the merchants, at the
expense of all other classes; to advance the interest of the first it
sacrificed the interests of all the other members of the community. To
prove this, it was only necessary to illustrate it by the common case of
a merchant availing himself of the benefits of bankruptcy, and thereby
cancelling the demands of the mechanic or the farmer who might be his
creditor; and of the same individual mechanic or farmer, the debtors of
another merchant, remaining his debtor with their property subject at
any period of their life to his seizure. In the case of the insolvent
merchant his debts were totally discharged; whereas in the case of the
insolvent mechanic and farmer, they were of eternal obligation. The
preferable system was that established by the several States, which
existed before the bankrupt system, and which still existed, extending to
all insolvent debtors the same relief.
It was contended that the partial operation of the bankrupt system had
the most mischievous influence on the morals of the mercantile world.
That it operated as an impunity to fraud and negligence; that it created
extensive credits, and excited a spirit of the most prodigal expenditure;
that although the American merchants were probably the most honest and
certainly the most able and enterprising in the world, the facility with
which credits were obtained, and the impunity with which risks were
incurred, had, under the auspices of this law, introduced into their
private expenditures a ruinous extravagance; and that nothing was more
common than to see a merchant, of but small capital, living at an expense
superior to that of the European trader who had realized his plum, and at
an expense which shamed the frugal disbursements of the affluent planter.
What were the effects? The scene of luxury and splendor was enjoyed for a
few years, and was succeeded by a failure. Did it become the Legislature
to encourage, or repress this spirit?
The principle of the bankrupt system was inequitable as it regarded the
relation of debtor and creditor. However it might be averred to the
contrary, it was a truth that its provisions operated to the advantage
of the debtor, and of course to the detriment of the creditor. There
was no weight in the remark that the commission was taken out at the
instance of the creditor, as that was merely a nominal act, a creditor
usually being made use of who was the friend of the bankrupt. That it
operated to the benefit of the debtor was clear from its liberating all
his future acquisitions, after availing himself of the benefit of a
commission, from seizure: whereas, under an insolvent law, the person
alone was released. That hence sprang up a ten-fold temptation to fraud
under this act, over that which existed under the common insolvent laws.
For that under the latter an insolvent debtor, if guilty of a fraudulent
concealment of property, could at any future period be called upon
to satisfy the claims of his creditors by a delivery of his visible
property; while, under this law, the bankrupt may live in the greatest
splendor, even ostentatiously displaying his property, without rendering
it liable to seizure. Fraud once successfully perpetrated and concealed,
every restraint is removed; and so deleterious had this effect been that
it had manifestly inflicted a deep wound upon the confidence of man with
man in the ordinary transactions of life.
It was further contended, that while justice and humanity dictated the
liberation from arrest of the body of the unfortunate debtor, justice
inhibited the exoneration of property from going to satisfy just debts;
that the obligation, wherever the ability existed, to pay just debts,
was eternal, and that this law, in having a retro-active effect, was
unjust. Evils infinitely greater had been inflicted by inconsiderate
and fraudulent debtors taking refuge in the provisions of the bankrupt
law than from all the inhumanity exercised by merciless creditors over
unfortunate debtors. That the principle of the bankrupt law was also
retro-active, inasmuch as it destroyed the grade of dignity existing in
many of the States, by which a bonded debt obtained a preference over an
open account; that it absolutely impaired the subsisting contract between
the person holding and the person signing the bond.
It was remarked that the principle of the bankrupt law, however good in
theory, could never be carried into effect, as had been proved by a long
course of British experience, without a recurrence to those sanguinary
laws which they had introduced for the prevention and punishment of
fraud, but which were so abhorrent to our code of laws that public
opinion could not tolerate them.
The expenses of going through the forms of bankruptcy constituted no
inconsiderable objection to the system. The appointment of a Commissioner
was understood to be in no small degree lucrative, and the various
processes through which the bankrupt was compelled to go, in practice,
reduced the little property he had left to a state still less. Indeed,
from the practical effects of the system, it would appear that it had
been made more for the emolument of the Commissioner than for the benefit
of the creditor.[7]
However necessary this system might be in England, who owed almost the
whole of her prosperity to trade, it became not a nation, the leading
feature of whose character was agriculture, to tread in her footsteps;
but, on the contrary, to avert rather than to hasten the period when such
a system would be rendered necessary; that, in truth, the spirit of trade
in this country was sufficiently vigorous, and only required the common
protection given to all other occupations, to prosper to every beneficial
purpose.
In the commercial world, the honest, though unfortunate merchant, had
nothing to fear from his creditors. A long experience had shown that
the mercantile world felt with sympathy and acted with magnanimity to
the unfortunate. In addition to these objections, it was urged that the
bankrupt law was injurious, as it enlarged the sphere of the Federal
courts. The constitution was a system of compromise. Many powers were
given without a view to their immediate exercise. It did not, therefore,
follow that, because the power given to establish a uniform system
of bankruptcy was given, it must now be exercised. The powers of the
General Government, if not too great, were sufficiently great. It became
Congress, therefore, neither to take from nor add to the powers of the
State courts. To increase the powers of the Federal courts, through the
operation of the bankrupt system, was to derogate from the powers of
the State courts. The State tribunals were weak enough, without thus
trenching upon them.
The authorities under this law not only went to enlarge the powers of
the Federal Government generally, but particularly to the extension of
executive power. The appointment of Commissioners of Bankruptcy was an
additional weight thrown into the scale of executive patronage. The
power of that department ought to be viewed with an eye of jealousy, and
the House, however willing to allow to it the enjoyment of all fair and
necessary power, ought vigilantly to guard against its undue increase.
It might be answered that this evil might be removed by placing the
appointment of the Commissioners in the hands of the courts. But this
would not be the effect. The Judicial Department, in the aspect of its
political weight, was not to be contemned. So long as it remains, as
fixed by the constitution, it will rest for support somewhere--it will
naturally ally itself to some other department of the Government, and
the inducements to such alliance will be most naturally held out by
the Executive; but however peculiar circumstances might at this time
indicate otherwise, such a tendency was a kind of political gravity,
which, however it might for a time be checked, would eventually exert its
influence.
On the other hand, the opponents of the repeal observed that the
silence of the public on the subject indicated neither hostility nor
opposition to the present system of bankruptcy; if it indicated any
prevailing sentiment, it was that of confidence in the judgment of their
representatives. If the system really was so unpopular as some gentlemen
had represented it to be, their tables would ere this have been covered
with memorials for its repeal, whereas not a single petition to that
effect had been presented during the session.
They contended that it would be true policy to suffer the act to expire
by its own limitation. Little more than two years would elapse before
the arrival of that period. This conduct was dictated by the undisputed
fact that the present system had been adopted as an experiment. Hence
the limitation of the act. This experiment was now in a fair course of
trial. Little more than three years had elapsed since its commencement,
and sufficient time had not yet passed to test the goodness or the
badness of the principle it involved. It was a fact that the distresses
of the commercial world called forth such a system when it was formed
in the year 1800; it was a fact that it had done much good; and it
might be that a system of bankruptcy, improved to the extent of which
it was susceptible, would be of permanent utility. Amendments, radical
amendments, the system certainly required; and should the House determine
not to destroy it, the amendments could and doubtless would be made.
It was believed that the general sentiment of the nation concurred in the
propriety of affording some relief to the distresses of the commercial
world. On the form and extent of that relief great contrariety of opinion
existed. It was the opinion of well-informed merchants and of the best
writers, that a greater relief should be afforded to the misfortunes of
men engaged in trade than in other occupations. To the argument that the
proper relief to be extended should be left to the determination of the
States, the objection that the laws of the different States were on this
point various and contradictory, was conclusive. Trade, of all human
occupations, embraced the widest range. Its operations were confined to
no particular State or climate, but pervaded the whole world. It was
of great importance then, if practicable, that laws in relation to it
should be equally wide with this extensive range. Though this was utterly
impracticable, yet it was practicable to make the same laws pervade a
whole nation. Of this opinion were the venerable patriots of 1789, who
framed the constitution; such was the spirit of the constitution itself;
and such its language in speaking of uniform laws respecting imports,
bankruptcies, and intercourse between the several States. Not that the
power to pass such laws was imperative: but they manifested the sense
of that body and the spirit of the instrument, that all laws on those
subjects should be uniform throughout the United States.
To the argument, that the exoneration of property from the payment of
just debts was a violation of justice, it was replied, that however
correct the principle might be in ordinary cases, it did not hold in
commercial concerns. In other employments an inability to comply with
contracts was generally the result of idleness or imprudence; but so
great and inevitable were the risks attendant on commerce, that no human
prudence could guard against them.
Of trade, credit was the life; without it, it could not exist. In this
country, too, it was the great source of revenue. How impolitic then was
it, in a country where the whole of the revenue, and much of the wealth
of its citizens, depended upon trade, to adopt regulations which would
repress mercantile exertion and enterprise.
It was contended, that it was not true that the principle of a bankrupt
law operated in favor of the debtor; the reverse was the case, and
constituted one of the strongest arguments of its superiority to
insolvent laws, under which the time of surrender was left to the option
of the debtor; whereas, under a bankrupt law, the creditor, whenever he
had reason to apprehend the fraud or failure of his debtor, could take
out a commission under the bankrupt law; the creditor may arrest the
prodigal or unjust career of the debtor; while, under the insolvent law,
the debtor rarely surrenders his property, until he has squandered nearly
the whole, or until he has made a fraudulent transfer of it. Such was the
operation of the principle of a good bankrupt system; with regard to the
present it was admitted that its provisions were unfair, and operated
frequently the other way.
A leading argument in favor of a bankrupt system was that it multiplied
checks against fraud; there would of course be less temptation to commit
fraud, as the chances of concealing it diminished. In most countries the
terrors of an awful punishment awaited the commission of fraud under this
act, even the terrors of death. Though it might not be sound policy in
this country to make punishments so terrible, yet it was always within
the power of the Legislature to make transgressions so penal, as to guard
against the apprehended evils.
It was contended that one great object of the constitution in bestowing
this power on the General Government was the establishment of national
credit upon the broad principles of justice; such was the effect of the
system of bankruptcy by which the same obligations were imposed upon the
merchants of all States in their relation to each other, and towards
foreigners. Remove this system, and you virtually re-enact the partial
and varying laws of the different States. In Virginia, for instance,
the person only of the debtor is liberated, while in Maryland both
person and property are liberated. Will not the citizen of one State
acquire advantages over the citizen of another, and will not foreigners
have reference in their dealings to the laws of the States, and prefer
dealing with the citizens of that State where there shall exist the
greatest security for the recovery of their debts? Will not the citizen
of one State remove into another, and evade the operation of the laws
of the States where contracts were made? The friends of the repeal say
the bankrupt system is retrospective in its operation. That was true,
inasmuch as it changed the relations of debtor and creditor. But what
will the repeal do? Contracts have been made under the contemplated
existence of the act for a fixed period. By repealing it before that
period arrives, you likewise change again the relations of debtor and
creditor.
About four o’clock, the debate being closed, the question on the
resolution to repeal, was taken and carried in the affirmative, ayes 94.
The Committee rose, and the House immediately took up their report, on
agreeing to which the yeas and nays were required, and were, yeas 99,
nays 13, as follows:
YEAS.--Willis Alston, jun., Nathaniel Alexander, Isaac
Anderson, John Archer, Simeon Baldwin, David Bard, George M.
Bedinger, Silas Betton, Phanuel Bishop, William Blackledge,
John Boyle, Robert Brown, Joseph Bryan, William Butler,
George W. Campbell, Levi Casey, William Chamberlain, Martin
Chittenden, Thomas Claiborne, Matthew Clay, John Clopton,
Frederick Conrad, Jacob Crowninshield, Richard Cutts, Samuel
W. Dana, John Davenport, John Dawson, William Dickson, Thomas
Dwight, John B. Earle, James Elliot, John W. Eppes, William
Findlay, John Fowler, James Gillespie, Calvin Goddard, Peterson
Goodwyn, Edwin Gray, Andrew Gregg, Thomas Griffin, Gaylord
Griswold, Roger Griswold, Samuel Hammond, Wade Hampton, John A.
Hanna, Josiah Hasbrouck, Seth Hastings, Joseph Heister, William
Hoge, David Holmes, Walter Jones, William Kennedy, Nehemiah
Knight, Michael Leib, Joseph Lewis, jun., John B. C. Lucas,
Andrew McCord, David Meriwether, Nahum Mitchell, Thomas Moore,
Jeremiah Morrow, Anthony New, Thomas Newton, jun., Gideon Olin,
Beriah Palmer, John Patterson, John Randolph, jun., John Rea of
Pennsylvania, John Rhea of Tennessee, Jacob Richards, Cæsar A.
Rodney, Erastus Root, Thomas Sammons, Thomas Sanford, Ebenezer
Seaver, John Smilie, John C. Smith, John Smith of Virginia,
Richard Stanford, Joseph Stanton, William Stedman, James
Stephenson, John Stewart, Samuel Taggart, Benjamin Tallmadge,
Samuel Tenney, David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Isaac Van Horne, Joseph B. Varnum, Matthew Walton,
John Whitehill, Marmaduke Williams, Richard Winn, Joseph
Winston, and Thomas Wynns.
NAYS.--John Campbell, Joseph Clay, Peter Early, William
Eustis, Daniel Heister, Benjamin Huger, John G. Jackson,
Thomas Lowndes, William McCreery, Nicholas R. Moore, Joseph H.
Nicholson, Tompson J. Skinner, John Smith of New York.
_Ordered_, That a bill or bills be brought in, pursuant to the said
resolution; and that Mr. NEWTON, Mr. HAMMOND, Mr. TALLMADGE, Mr. VAN
CORTLANDT, and Mr. MARMADUKE WILLIAMS, do prepare and bring in the same.
THURSDAY, November 24.
_Amy Dardin._
On the motion of Mr. CLAIBORNE, the House resolved itself into a
Committee of the Whole on the report of the Committee of Claims on the
petition of Amy Dardin. The report is unfavorable to the prayer of the
petitioner.
On agreeing to this report, a discussion took place which occupied the
greater part of the day. Messrs. J. C. SMITH, GREGG, and MACON supported,
and Messrs. CLAIBORNE, SMILIE, and ELLIOT opposed the report; when the
question was taken on agreeing to the report of the Committee of Claims
and lost--ayes 32.
Mr. CLAIBORNE then moved a resolution, “that the prayer of Amy Dardin is
reasonable and ought to be granted.”
Messrs. CLAIBORNE and NICHOLSON supported and Messrs. GRISWOLD and
GREGG opposed this resolution, which, on the question being taken, was
carried--ayes 61, nays 38.
The committee then rose, and reported their agreement to the resolution.
Mr. GREGG moved an amendment directing the proper accounting officer of
the Treasury to settle the claim of Amy Dardin, on the same principle
with similar cases, the statute of limitations notwithstanding.
Messrs. GRISWOLD and GREGG supported, Messrs. NICHOLSON and CLAIBORNE
opposed the amendment.
A concurrence in the report was then agreed to, and the Committee of
Claims instructed to bring in a bill.
FRIDAY, November 25.
_Ordered_, That the petition of Memucan Hunt, William Polk, and Pleasant
Henderson, for themselves and others, addressed to the General Assembly
of the State of North Carolina; also, sundry resolutions of the said
Assembly, respecting a claim for the value of certain lands in the State
of Tennessee, presented to this House on the nineteenth of January, one
thousand eight hundred and two, and the report of a select committee
thereon, made the twenty-fourth of March, in the same year, be referred
to the committee this day appointed on the memorial of the Legislature of
Tennessee.
_Bankrupt Law._
Mr. NEWTON called for the order of the day on the bill to repeal an act
to establish a uniform system of bankruptcy throughout the United States;
and the House then resolved itself into a Committee of the Whole on the
said bill.
Mr. VARNUM moved an amendment, extending the period of repeal to the
first of January, 1804, instead of from the passage of the act; and
afterwards varied the motion, so as to leave the period of repeal blank.
This motion was supported by Messrs. R. GRISWOLD, EARLY, and SKINNER; and
opposed by Messrs. SMILIE, NEWTON, RODNEY, and HASTINGS. Lost--ayes 25.
On motion of Mr. R. GRISWOLD, an amendment was introduced, directing the
completion of all proceedings under commissions taken out previous to the
repeal.
The committee then rose and reported the bill with the above amendment,
in which the House immediately concurred, and ordered, without a
division, the bill to be engrossed for a third reading on Monday.
[The bill is concise, and is confined to repealing the bankrupt act,
saving cases where commissions have been taken out previously to the
passage of the act, at which time the repeal takes effect.]
MONDAY, November 28.
_Public Roads._
On the call of Mr. JACKSON, the House resolved itself into a Committee of
the Whole on the following resolution:
“_Resolved_, That provision be made, by law, for the
application of one-twentieth part of the net proceeds of the
land lying within the State of Ohio, sold, or to be sold by
Congress, from and after the 30th day of June, 1802, to the
laying out, and making public roads, leading from the navigable
waters emptying into the Atlantic, to the Ohio river, and to
the said State of Ohio: in conformity with the act of Congress,
entitled ‘An act to entitle the people of the eastern division
of the territory north-west of the river Ohio, to form a
constitution, and State government, and for the admission of
such State into the Union on an equal footing with the original
States; and for other purposes,’ passed upon the 30th April,
1802, as well as the act passed the 3d of March, 1804, in
addition to and in modification of the propositions contained
in the act aforesaid; and the ordinance of the convention of
the State of Ohio, bearing date the 29th day of November, 1802.”
Mr. JACKSON called for the reading of the acts of Congress which were
referred to in the resolution, which was done: he then moved that the
committee rise and report their agreement.
Mr. VARNUM said he hoped the question would be taken separately on the
resolution.
Mr. JACKSON hoped that gentlemen opposed to the resolution would rise at
that time and express their opinions.
Mr. NICHOLSON was opposed to the resolution, but was prevented from
indisposition from expressing his sentiments; he would do it at a future
period.
Mr. J. RANDOLPH was sorry that the indisposition of his friend from
Maryland should prevent him from delivering his sentiments on this
occasion. He was himself unprepared to speak on this question, but it
appeared to him, from a complete view of the subject some time since,
that the resolutions contravened one of the provisions of the law to
which it was referred; by reverting to that law, it would be found that
in one of the propositions offered by Congress to the State of Ohio, it
was provided that one-twentieth part of the net proceeds, arising from
the sale of lands in that State, should be laid out in roads to and from
it, and laid out under the direction of Congress. The State of Ohio
agreed to adopt the propositions if Congress would make an amendment,
(which he read.) He wished to call the attention of the committee to
the facts, and wished them to attend to the different propositions. He
should not have troubled the committee but from an apprehension that
when gentlemen had taken up an opinion, they were loth to abandon it.
One of the propositions of Congress was, that one-twentieth part of the
net proceeds arising from the sale of lands in the State of Ohio should
be laid out under the direction of Congress in the making of roads from
the Atlantic to that State. The State of Ohio agrees to the proposition
with this amendment, that not less than three per cent. should be laid
out exclusively in that State, under the direction of their Legislature.
He conceived that the last proposition was only a modification of the
former, and that the three per cent. was a part of the five, and not an
additional allowance; if the latter had been intended, why, he asked,
was it not so expressed? There were several other propositions and they
were stated to be amendments. He considered Congress never intended to
grant more than five per cent. and should therefore vote against the
resolutions.
Mr. R. GRISWOLD apprehended there could be no doubt as to the
construction which Congress gave to the law in question; there might
be some doubt whether that construction was a sound one; he, however,
thought it perfectly so. In the year 1801, Congress provided that
one-twentieth part of the net proceeds arising from the sale of lands
in the State of Ohio, should be applied to making roads to that State,
under the direction of Congress. The proposition was laid before the
State of Ohio. The Convention of Ohio agreed to it, provided Congress
would consent to a modification of it; they wished some part of the five
per cent. to be laid out exclusively in their own State and under the
direction of their own Legislature; they therefore proposed that three
per cent. should be laid out in the State, and under the direction of the
Legislature of Ohio. If the State of Ohio had intended that the three per
cent. was to be added to the five, they would have stated it (as in the
other propositions) to be in addition to it. The committee which were on
the subject last session, gave the law the same construction which he
did, and the House concurred in that construction. He thought they were
under no obligation to lay out more money than they had agreed to do,
and if the committee would attend to the subject, they could be under no
difficulty to determine the construction. We had an appropriation of two
per cent. to make, and perhaps it might be necessary to pass a law to
that effect; but he could not consent to give any more.
Mr. G. W. CAMPBELL would beg the indulgence of the committee while he
said a few words on the subject before them. As he should vote in favor
of the resolution on the table, he conceived that when they were about to
determine on the construction of a law, they were only to refer to the
face of it, and not to inquire what the framers of it meant. He begged
leave to read the law on the subject, and said that the law of Congress
concerning five per cent. was in force, unless repealed by another law;
and the subsequent law, which provided for the laying out of three per
cent. in roads, was either in addition to or a repeal of it; he believed
that it was an addition to it. It could not be the intention of the
Convention of Ohio to accept of three per cent. to be laid out in their
own State, and under the direction of their own Legislature, in lieu of
five per cent. to be laid out under the direction of Congress. He should,
considering the appropriations to be distinct ones, vote in favor of the
resolutions.
Mr. RODNEY deemed it necessary to make but few observations after the
able arguments of his friend from Virginia, (Mr. RANDOLPH,) and the
luminous observations of the gentleman from Connecticut, (Mr. GRISWOLD,)
against the resolutions. The question to be determined, was, whether
the five per cent. was to be given exclusive of the three? It had
been said that they ought not to consider the intention of those who
framed the law, but he conceived it to be proper, in order to give a
right construction. When they reverted to the propositions themselves,
they would find one of them was, that provided the State of Ohio would
not for a limited time tax the lands of the United States, that then
one-twentieth part of the net proceeds arising from the sale of lands
in that State should be laid out in making roads to the State of Ohio,
the same to be laid out under the direction of Congress. When this
proposition came before the Convention of Ohio, they said that three
per cent. ought to be laid out exclusively in their own State and under
the direction of their Legislature. This could only be intended as a
modification of the law. He did not think there was any difficulty in
determining the construction of the law, and should vote against the
resolution.
Mr. VARNUM conceived that the construction given to the law by the
gentlemen from Virginia, Connecticut, and Delaware, was perfectly
correct. He did not know whether it would be necessary to make an
appropriation of the remaining two per cent. during this session, but in
order to try the principle, he moved to strike out of the resolution the
words one-twentieth and insert one-fiftieth.
Mr. SANFORD had not intended to have troubled the committee on this
occasion, but being a representative from the West, it might be expected
that he might be in favor of the resolution. But he did not conceive
that more than five per cent. was ever intended to be given, and this
was not a question of expediency. He did not believe that the Convention
of Ohio intended that the three per cent. should be given in addition
to the five, nor had they any reason to expect it. This ought not to
be an Eastern and a Western question. If the five per cent. was now
given, Mr. S. asked whether it would not operate for the benefit of
the rest of the States as well as the State of Ohio? But, as they must
determine, not what Congress ought to give, but what they meant to give,
and he conceived that three per cent. was a part of the five, he should
therefore vote against the resolution.
Mr. LYON spoke in favor of the resolution at some length.
Mr. MACON did not think it necessary to say any thing on the construction
of the law, because he conceived the arguments of the two first gentlemen
who opposed the resolution (Messrs. J. RANDOLPH and R. GRISWOLD) to be
unanswerable; but as the question appeared to be made an Eastern and a
Western one, he would say a few words. He considered the whole United
States concerned in it, and not merely the State of Ohio. He believed
that the arguments of gentlemen, that they had not done justice to the
State of Ohio, were groundless. There was no State in the Union which
has been so much favored as that State. He was sorry gentlemen had used
threats on the occasion, that if they did not grant this, they might not
be attached to the Union; but he believed that the State of Ohio would
be the greatest loser by it. He was willing to leave it to the Western
people themselves to determine, whether Congress had not done them
justice, and he was certain they would answer in the affirmative.
Mr. BOYLE did not consider this a question of party or of expediency; nor
what Congress ought to give, but what they had given. If the construction
of the law was difficult to determine, it ought to be taken against the
United States and favorable to the State of Ohio, because Congress was
the grantor and that State the grantee. This was the manner in which
private contracts were always construed, and he thought it a sound one.
The gentleman from Virginia (Mr. JOHN RANDOLPH) had said that the three
per cent. was not intended to be given in addition to the five, because
it was not so expressed; but Mr. B. said, the last law was not said to be
a modification, the construction was therefore doubtful and ought to be
taken favorable to the State of Ohio.
Mr. GODDARD did not think they were under any difficulty in determining
the true construction of the law in question. He considered it to admit
of but one construction; this appeared to him to be a negotiation
between Congress and the State of Ohio. It was proposed by the former,
that if the latter would not tax their lands for a limited time, the
one-twentieth part of the net proceeds should be laid out in making roads
for that state under the direction of Congress; the State of Ohio acceded
to it, provided three per cent. should be laid out exclusively in that
State, and Congress agreed to it; this appeared to him to be the true
state of the case.
Mr. MORROW would beg the indulgence of the committee while he made a
few observations on the subject. He was sorry this was made a party
question. He read the report of the committee of Congress and the
propositions of Congress to the State of Ohio; and observed that when the
propositions came before the convention, they were pleased with them, but
did not consider that the five per cent., which was to be laid out in
roads, was an equivalent for what they asked: which was, that the State
of Ohio should not for a limited time tax the lands of Congress. How,
said Mr. M., gentlemen would ask, was this known? He would answer, by an
estimate of the value of both; therefore they agreed to the propositions,
provided Congress would make an amendment, and allow them an additional
three per cent. to be laid out exclusively in their own State and under
the direction of their Legislature: to this Congress agreed. He conceived
the question for them to determine, whether the three was in addition to
or in lieu of the five; he believed it could not be the latter, because
it would go to defeat the original design, which was facilitating the
communication between the Eastern and Western States. He was in favor of
the resolution, believing that it was the intention of the Convention of
Ohio, at the time they agreed to the propositions, that the three per
cent. was to be given in addition to the five.
The question was taken on Mr. VARNUM’s motion to strike out one-twentieth
and insert one-fiftieth, and carried--yeas 75.
The question was then taken on the resolution as amended, and carried
without a division.
TUESDAY, November 29.
_Amy Dardin._
Mr. CLAIBORNE called for the order of the day on the bill for the relief
of Amy Dardin.
The motion of Mr. DAWSON being lost, there being only thirty-two ayes in
favor of it, Mr. CLAIBORNE’s motion was taken up.
Mr. SANFORD moved to postpone the order of the day on the bill for the
relief of Amy Dardin till to-morrow, in order to introduce a resolution
for the appointment of a committee to inquire into the expediency of
extending the time for adjusting the claims of individuals for supplies
furnished and services rendered during the Revolutionary war, with the
view of trying previously to the granting individual relief the general
principle, whether Congress would repeal the statutes of limitation.
After a debate of considerable length, the motion to postpone was lost.
The House then went into a Committee of the Whole on the bill, which
was so amended as to allow Amy Dardin two thousand five hundred dollars
for the horse Romulus, being the estimated value thereof, not including
interest.
The Committee reported the bill so amended.
The question was then taken on two thousand five hundred dollars, and
decided in the negative by the vote of the SPEAKER.
Mr. NICHOLSON moved to fill the blank with two thousand three hundred
and twenty dollars, being the amount of principal and interest on the
value of the horse.
Mr. SANFORD moved to fill it with one thousand dollars.
The House agreed to Mr. NICHOLSON’s motion--ayes 58, noes 43.
The yeas and nays were then taken on the engrossing of the bill for a
third reading--yeas 57, nays 49.
_Ordered_, That the said bill be read the third time to-morrow.
WEDNESDAY, November 30.
The SPEAKER laid before the House sundry depositions and other papers,
transmitted from the counties of Greenbriar and Rockbridge, in the State
of Virginia, respecting the contested election of THOMAS LEWIS, one of
the members returned to serve in this House for the said State; which
were ordered to be referred to the Committee of Elections.
_Amy Dardin._
An engrossed bill for the relief of the legal representatives of David
Dardin, deceased, was read the third time; and on the question that the
said bill do pass, there appeared--yeas 58, nays 57. And Mr. SPEAKER
having declared himself with the nays, the said question was, in
conformity with the rules of the House, decided in the negative. And so
the said bill was rejected.
MONDAY, December 19.
A memorial of the House of Representatives of the Mississippi Territory
of the United States, signed by William Dunbar, their Speaker _pro
tempore_, and attested by Richard S. Wheatly, their Clerk, was presented
to the House and read, stating certain disadvantages to which the
inhabitants of the settlement on the Tombigbee and Alabama rivers have
been and are now subjected, in consequence of their remote situation from
the other inhabited parts of the said Territory; and praying that a line
of separation may be drawn between the settlements on the Mississippi
river, and those of Washington District, or that judges, learned in the
law, may be appointed to reside within the said district, for the benefit
and convenience of the inhabitants thereof.
_Ordered_, That the said memorial be referred to the committee appointed,
on the 25th ultimo, on the petition and memorial of sundry inhabitants of
the District of Washington, situate on the Mobile, Tombigbee, and Alabama
rivers, in the said Mississippi Territory; to examine and report their
opinion thereupon to the House.
_Mail Routes._
The House went into a Committee of the Whole on the following report of
the Post Office Committee:
The Committee on the subject of the Post Office and Post Roads,
to whom was referred a resolution of the 2d ultimo, directing
them to inquire by what means the mail may be conveyed with
greater security and dispatch than at present, between the City
of Washington and Natchez and New Orleans, report:
That the late cession of Louisiana by France to the United
States renders it an object of primary importance to have the
nearest and most expeditious mode of communication established
between the city of Washington and the city of New Orleans,
the capital of that province; not only for the convenience of
Government, but to accommodate the citizens of the several
commercial towns in the Union.
That at present the mail is conveyed on a circuitous route from
this place to Knoxville and Nashville in Tennessee, and from
thence through the wilderness by Natchez to New Orleans, a
distance of more than 1500 miles.
That, by establishing a post route as nigh on a direct line
between those two cities, as the Blue Ridge and Alleghany
Mountains will admit of, it will not only lessen the distance
about 500 miles; but as this route will pass almost the whole
way through a country inhabited either by citizens of the
United States or friendly Indians, the mail will be more
secure, and the persons employed in transporting it better
furnished with the means of subsistence.
The committee flatter themselves that the views of the
General Government, in effecting this important object,
will be seconded by the governments and citizens of those
States through which this road will pass, by laying out,
straightening, and improving the same, as soon as the most
proper course shall be sufficiently ascertained; but as this
has not heretofore been used for conveying the mail between
those places, they presume that the best route will be better
known after it has been used for this purpose, than it can be
at present; and with this view of the subject, they deem it
improper at this time to designate intermediate points; they
are, therefore, of opinion--
That a post road ought to be established from the city of
Washington, on the most direct and convenient route to the
Tombigbee settlement in the Mississippi Territory, and from
thence to New Orleans.
And further, that a post road ought also to be established from
the said Tombigbee settlement to the Natchez. This road will
not only afford the inhabitants of that place a direct mode of
communication with the seat of the Territorial Government, who
at present are destitute of any, but will shorten the distance
between this city and Natchez nearly three hundred miles. And
for the consideration of the House, the committee submit the
following resolution:
_Resolved_, That a post road ought to be established from
the city of Washington, on the most direct and convenient
route, to pass through or near the Tuckabachee settlement to
the Tombigbee settlement in the Mississippi Territory, and
from thence to New Orleans; and also from the said Tombigbee
settlement to Natchez.
Mr. STANFORD moved the insertion of the following words:
“And Carter’s Ferry on James river, Cole’s Ferry on Stanton,
Dansville on Dan river, in Virginia; Salisbury, Beatty’s
Ford, on Catawba, in North Carolina; Spartanburg, Greenville
Courthouse, and Pendleton Courthouse, in South Carolina; and
Jackson Courthouse in Georgia:”
His object being to designate the intermediate points of the route
between the seat of Government and New Orleans and Natchez.
This motion was supported by Messrs. STANFORD, J. RANDOLPH, EARLY, EARLE,
and MACON, on the principle that it was proper that Congress should
designate the route, and on the ground that the route contemplated by the
amendment would be the fittest.
On the other hand, the motion was opposed by Messrs. THOMAS, SMILIE,
HOLLAND, CLAIBORNE, S. L. MITCHILL, and G. W. CAMPBELL, on the ground
that a discretionary power should be reposed in the Postmaster General
to designate the route; and on the ground that, if Congress should
undertake to designate the route, the one fixed by the amendment was not
an eligible one.
Mr. DENNIS declared himself in favor of the House exercising the power of
designating the route, but was not sufficiently informed to vote on any
particular line.
Mr. R. GRISWOLD moved that the Committee of the Whole should rise and ask
leave to sit again, with the view that leave should be refused, and the
report recommitted to the Post Office Committee, in order to obtain from
them a detailed report, that would furnish the House with satisfactory
information.
This motion was supported by Mr. GREGG, and opposed by Mr. THOMAS, and
carried--yeas 70.
The House then refused leave to the Committee of the Whole to sit
again--yeas 19, and recommitted the report to the Post Office Committee.
FRIDAY, December 30.
Three other members, to wit: EBENEZER ELMER, JOHN SLOAN, and HENRY
SOUTHARD, from New Jersey, appeared, produced their credentials, were
qualified, and took their seats in the House.
TUESDAY, January 3, 1804.
_Light-House Duties._
Mr. MITCHILL observed, that there had been some conversation in the
House during the last session, concerning the sums of money paid by our
merchants on foreign voyages. He wished to renew that subject, as well
worthy of the attention of Government.
Foreign nations levy money upon our vessels, which frequent their ports,
for the purpose of supporting their light-houses. The sums paid by our
merchants in compliance with these exactions are very considerable.
The contribution which strangers are thus obliged to make, constitutes
a fund, that goes a great way towards defraying the expense of those
establishments, to the great relief of their own subjects.
The average amount of light-money paid by every vessel that enters a
British port, is about four pence sterling the ton, for every light she
may have passed inwards, or that she may be expected to pass outwards.
Calculating by this rule, an American ship of two hundred and eighty-four
tons, entering the port of London, is charged with duties for the
maintenance of the following lights, all along up the British channel, to
wit: Scilly, Longships, Lizard, Eddystone, Portland, Caskets, Needles,
Owers, Dungenness, Foreland, Goodwin, and the Nore. They amount to
thirty-four pounds sterling, and the stamped paper for the receipt four
pence more. Besides this, the duties of the Trinity House, for such a
ship, amount to nine pounds seven shillings and eight pence. In addition
to which there is demanded and paid by virtue of an act of George III.
for the maintenance and improvement of the harbor of Ramsgate, seven
pounds and two shillings. So that the amount of these impositions for
light-money and Ramsgate harbor money, on a ship under three hundred
tons, for a single voyage to London, amounts to fifty pounds and ten
shillings sterling, which is equal to two hundred and twenty-two dollars,
independent of her tonnage, duties on merchandise, pilotage and other
expenses.
An American vessel entering the harbor of Hull, the lights are charged
as before, viz: Scilly, Longships, Lizard, Eddystone, Portland, Caskets,
Needles, Owers, Dungenness, Foreland, and Goodwin; and to these are added
the lights on the Eastern coast of England, such as Sunk, Harwich, Gatt,
Lowestoft, Harbro, Winterton, Oxford, Shawl, Dudgeon, Faulness, and the
Spurn. The amount of these demands for light-money on an American ship of
two hundred and forty-five tons, is thirty-seven pounds and six shillings
sterling. At Hull, the collector enforces payment of Ramsgate harbor
duties to the amount of £6 2_s._ 6_d._, and of Dover harbor dues to the
amount of £3 1_s._ 3_d._ The demand for supporting lights, few of which
perhaps were seen on the passage, and for improving harbors which were
not entered by the ship, amounts to forty-six pounds nine shillings and
nine pence sterling on a burthen less than two hundred and fifty tons; an
amount of demand exceeding two hundred and four dollars.
An American ship goes to Liverpool, she is charged for the light up St.
George’s Channel. A ship of three hundred and fourteen tons is made to
pay for supporting the lights at Milford, that called the Smalls, and
another known by the name of Skerries. These several demands, with the
price of stamps, come to £15 14_s._ 2_d._ sterling on a vessel of that
burthen for one voyage, or more than sixty-three dollars for light-money
alone. For each of these three light-houses the charge is exactly four
pence sterling the ton.
Light-houses have been established by the Government of the United States
on many parts of our extensive coast. Many parts of it are admirably
illuminated. And the whole expense of these valuable establishments is
defrayed from the Treasury out of the ordinary income. Foreigners who
visit our ports participate the security and advantage of these guides
to mariners, as fully as our own citizens; but they pay nothing for this
privilege of directing themselves by our lights. Foreign nations have
acknowledged the principle that duties ought to be collected from their
commercial visiters, for supporting light-houses, and they compel our
merchants to pay them. It is a correct principle of distributive justice,
that we should cause our commercial visiters to pay something also for
the establishment and improvement of our light-houses. A duty of tonnage,
for this express purpose, could easily be laid and collected from foreign
vessels, and would add materially to our means of keeping them in good
repair and attendance. A sum, for example, of six or seven cents per ton
upon every foreign vessel for every light-house she shall have passed,
will make a valuable fund for the humane and excellent institution
of light-houses. To the intent that this interesting subject may be
investigated and that our Government may avail itself of its own proper
rights and resources, I move the following resolution:
“That the Committee of Commerce and Manufactures be directed
to inquire into the expediency of laying and collecting a
tonnage duty on foreign ships and vessels, entering the ports
and harbors of the United States, for an equivalent for the
advantages which such ships and vessels derive from the
light-houses they pass, inwards and outwards.”
WEDNESDAY, January 4.
_Addition to the Navy._
A debate of some length ensued on the motion of Mr. MACON to strike out
the second section.
Messrs. SMILIE and J. RANDOLPH supported the motion. They contended that
no necessity existed in the present situation of the United States for
an augmentation of the Navy; that it remained in the same state it had
been fixed in during March, 1801, with the addition of four small vessels
for the Mediterranean service; that it had heretofore proved fully
competent to the protection of commerce, even when the complexion of our
affairs was less pacific than at present; that the Mediterranean service
had evinced that large vessels produced in that quarter more decisive
effects than small ones, and that of the former description of vessels
we had a sufficient number unemployed; that one great occasion for small
vessels was removed by the permission of the State of South Carolina to
import slaves, which superseded the necessity of any additional force
to restrain their illegal admission into the United States; that this
addition to our marine force did not appear to be necessary, inasmuch
as the President, whose constitutional duty it was to give information
to Congress of the state of the Union, and who directed the armed force
of the nation, had not intimated his opinion of its necessity; and that
Congress might be sure, if he thought it necessary, he would not hesitate
to apprize them of it; that in adopting this provision of the bill the
House was acting altogether in the dark, as no estimates of the expense
had been furnished, and not even a committee appointed to examine either
the propriety or expense of the measure. It was alleged that it became
the Legislature, in the present posture of the national finances, to
be uncommonly circumspect. New and heavy pecuniary obligations had
been incurred, and time alone could show whether the present resources
would be more than commensurate to meet them. That the Secretary of the
Treasury, at the opening of the session, had spoken of the competency
of our resources with a caution which ought to impress the House with
the necessity of exercising strict economy, unless disposed to vote new
taxes. To this point this measure manifestly tended, and it became those
who were hostile to new taxes, to hesitate before they adopted a measure
that promised to lead to it.
The motion was, on the other hand, opposed by Messrs. NICHOLSON, EUSTIS,
R. GRISWOLD, and HUGER. They observed that the bill under consideration
had received the sanction of the Senate, and it might be rationally
presumed that they had previously to its passage received satisfactory
proof of its necessity; that the first section authorized the sale of the
frigate General Greene, in the lieu whereof it was contemplated to build
or purchase two small ships; that this measure therefore constituted no
increase of the Navy beyond its present strength; that so far as related
to expense, whatever the temporary cost, arising from the building or
purchase might be, the permanent expense of two small vessels would be
greatly inferior to that of one large one; that the annual expense of a
forty-four gun frigate was $104,000, while that of a vessel of sixteen
guns was only $36,000; that with regard to the argument of gentlemen
drawn from a want of estimates, it was idle, as estimates had been
furnished at the last session, as the basis of adding four small vessels
for the Mediterranean service, which amounted to $96,000, which sum
appeared to be sufficient. If, therefore, four vessels cost $96,000, two
would not cost more than $50,000; that with regard to the necessity of
these ships, Congress were the proper and constitutional judges; that it
was their special duty to provide and maintain a navy, and to provide for
the common defence and general welfare of the United States; and that
the absolute dependence placed by gentlemen on Executive mandates was
unprecedented, anti-republican, and unconstitutional; that it became the
Legislature to judge for themselves as to the propriety of the measure;
that from the knowledge they possessed of the state of the country, and
the extended sphere of commerce, abundant evidence was presented of its
necessity. It was a fact well ascertained that, for Barbary warfare,
these small ships were eminently useful, and that service required
relief; for in case of a disaster occurring to one of our present small
vessels, it was proper to be provided with others that might promptly
make good the deficiency. That the acquisition of Louisiana would
undoubtedly require some naval force to ensure the collection of the
revenue in that quarter; and that the state of the West Indies absolutely
demanded an addition of some small vessels to protect our trade from
the barges that were fitted out by the brigands for the purposes of
depredation; that it was a fact that if the Executive, at this moment,
possessed one of these ships, it would be immediately sent to the West
Indies; that there were other important purposes for which these vessels
were wanted. The Government had frequent occasion to send special Envoys,
on points of vast importance, to the two great powers in Europe. Was it
then safe, or becoming the dignity of the nation, to send such characters
in a private merchantman, subject to the search or capture of any armed
vessel of Europe?
Before a question was taken on the motion to strike out the section,
Mr. JACKSON moved that the committee should rise. If they rose he would
oppose their having leave to sit again, with the intention of referring
the bill to the Committee of Commerce and Manufactures.
The committee agreed to rise--ayes 63.
Leave having been refused to them to sit again, Mr. J. RANDOLPH moved
that a committee be appointed to inquire whether any, and what, further
additions may be necessary to the Naval Establishment of the United
States,
Mr. ALSTON moved to amend the motion by striking out “a committee be
appointed,” and inserting “the Committee of Commerce and Manufactures be
instructed.” Messrs. ALSTON, NICHOLSON, and EUSTIS supported, and Mr. J.
RANDOLPH opposed this amendment. Carried--yeas 51, nays 46.
The motion thus amended was supported by Messrs. HUGER and ELMER, and
opposed by Messrs. VARNUM and SMILIE. Carried--yeas 57, nays 44.
Mr. JACKSON then moved the reference of the bill to the Committee of
Commerce and Manufactures. Agreed to without a division.
THURSDAY, January 5.
_Official Conduct of Judge Chase._
Mr. J. RANDOLPH said, that no people were more fully impressed with the
importance of preserving unpolluted the fountain of justice than the
citizens of these States. With this view the Constitution of the United
States, and of many of the States also, had rendered the magistrates who
decided judicially between the State and its offending citizens, and
between man and man, more independent than those of any other country
in the world, in the hope that every inducement whether of intimidation
or seduction which could cause them to swerve from the duty assigned
to them might be removed. But such was the frailty of human nature
that there was no precaution by which our integrity and honor could be
preserved, in case we were deficient in that duty which we owed to
ourselves. In consequence, sir, of this unfortunate condition of man,
we have been obliged, but yesterday, to prefer an accusation against a
judge of the United States who has been found wanting in his duty to
himself and his country. At the last session of Congress a gentleman from
Pennsylvania did, in his place, (on the bill to amend the Judicial system
of the United States,) state certain facts in relation to the official
conduct of an eminent judicial character, which I then thought, and
still think, the House bound to notice. But the lateness of the session
(for we had, if I mistake not, scarce a fortnight remaining) precluding
all possibility of bringing the subject to any efficient result, I did
not then think proper to take any steps in the business. Finding my
attention, however, thus drawn to a consideration of the character of
the officer in question, I made it my business, considering it my duty,
as well to myself as to those whom I represent, to investigate the
charges then made, and the official character of the judge, in general.
The result having convinced me that there exists ground of impeachment
against this officer, I demand an inquiry into his conduct, and therefore
submit to the House the following resolution:
_Resolved_, That a committee be appointed to inquire into the
official conduct of Samuel Chase, one of the Associate Justices
of the Supreme Court of the United States, and to report
their opinion whether the said Samuel Chase hath so acted in
his judicial capacity as to require the interposition of the
constitutional power of this House.
After the motion made by Mr. J. RANDOLPH had been read from the Chair,
Mr. MITCHILL said, before the question was taken, he should be glad,
from the novelty and serious nature of the proposed measure, to hear a
statement by his friend from Virginia of the reasons in detail on which
it was founded.
Mr. J. RANDOLPH observed, that when he was up before he had stated that
the gentleman from Pennsylvania (Mr. SMILIE) had, in his place, at the
last session of Congress, given a description of the official conduct
of the officer to whom the resolution referred, which he considered the
House bound to notice. It could not be conceived that the gentleman would
have laid before the House a statement, the facts of which were not
supported by his own knowledge, or by evidence on which he could place
the utmost reliance. He did not conceive this to be a time to decide
whether the information exhibited by the gentleman from Pennsylvania
was or was not correct. At present an inquiry alone was proposed. If
it should be made, it must result either that the conduct of the judge
would be found to be such as not to warrant any further proceedings on
the part of the House, or such as would require the interposition of that
authority, which, as the immediate representatives of the people, they
alone possessed. If on inquiry the committee shall be persuaded that
the judge has not exceeded his duty, they will so report; if, on the
contrary, they find it such as to require the interposition of the House,
they will recommend that course of proceeding to which the House alone is
competent. With respect to the facts which had come to his knowledge, Mr.
R. said that they were such as he did not wish to state. He preferred its
being done by witnesses, who were most competent to do it correctly.
Mr. ELLIOT said, I am as deeply convinced as the gentleman from Virginia
that the streams of justice should be preserved pure and unsullied. I
am also sensible that the Judicial Department ought to attach to itself
a degree of independence. I am of opinion that this House possesses no
censorial power over the Judicial Department generally, or over any judge
in particular. They have alone the power of impeaching them; and when
a judge shall be charged with flagrant misconduct, and when facts are
stated which shall induce them to believe those charges true, I shall
be at all times prepared to carry the provisions of the constitution
into effect, in virtue of which great transgressors are punishable for
their crimes. The basis of this resolution is, that a gentleman from
Pennsylvania, at the last session, stated that the judge named in it
had been guilty of improper conduct. Of these charges I am uninformed,
and every new member must be uninformed. It is astonishing to me that
we are called upon to vote for an inquiry into the character of a judge
without any facts being adduced to show that such an inquiry should be
made. If the resolution pass in its present form, it appears to me that
we shall thereby pass a vote of censure on this judge, which neither the
constitution nor laws authorize. If the judge be guilty, I should suppose
the first step proper to be taken would be for some person aggrieved,
or for members having personal knowledge, to exhibit facts on which the
House may act. I can never consent, because the gentleman from Virginia,
or any other gentleman, says that there are facts which have come to his
knowledge that induce him to think an inquiry ought to be instituted,
to vote for it, unless those facts are first stated. I can never agree
to any act which shall in this manner, without the exhibition of proof,
impose censure or suspicion on a judge. This course may be perfectly
Parliamentary; but it strikes me as altogether unprecedented. I shall,
therefore, until some facts are adduced, resist every attempt to impose a
censure upon the conduct of any public officer.
Mr. SMILIE.--If the gentleman from Vermont had commanded a little
patience, he would have perceived the remarks which he has just made to
have been altogether unnecessary. He would have perceived the necessity
imposed upon me by the observations of the gentleman from Virginia of
stating those facts to which that gentleman alluded. It must be seen that
these proceedings contemplate the possibility of an impeachment. It will
be recollected by gentlemen who were in Congress at the last session,
that I was then led to give a statement of facts respecting the conduct
of Judge Chase on a particular occasion. That statement was not made with
a view to impeachment. A bill had been introduced to change the districts
of the circuit courts of the United States; when I discovered that Mr.
Chase was assigned to the district of Pennsylvania, I felt interested
in having him transferred to another district, considering that his
previous conduct had rendered him obnoxious to the people of that State.
These circumstances I stated to the House, and was in consequence called
upon to assign my reasons why Judge Chase was obnoxious to the people of
Pennsylvania. This is the history of the business so far. I am now called
upon to state the facts which I mentioned on that occasion. This I shall
do briefly.
A man of the name of Fries was prosecuted for treason in the State of
Pennsylvania. Two of the first counsel at that bar, Mr. Lewis and Mr.
Dallas, without fee or reward, undertook his defence. I mention their
names to show that there could have been no party prejudices that
influenced them. When the trial came on, the judge behaved in such a
manner that Mr. Lewis declared that he would not so far degrade his
profession as to plead under the circumstances imposed upon him. Mr.
Dallas declared that the rights of the bar were as well established as
those of the bench; that he considered the conduct of the judge as a
violation of those rights, and refused to plead. The facts were these:
The judge told the jury and the counsel that the court had made up their
minds on what constituted treason; that they had committed their opinion
to writing, and that the counsel must therefore confine themselves to
the facts in the case before the court. The counsel replied that they
did not dispute the facts, but that they were able to show that they
did not constitute treason. The end of the affair was, that the counsel
retired from court, and the man was tried without counsel, convicted, and
sentenced to death.
After this the Attorney General wrote a letter to Messrs. Dallas and
Lewis, requesting them to furnish their notes and opinions for the use of
the President. They drew up an answer, in which they stated that the acts
charged against Fries did not amount to treason, but were only sedition;
and that they were so considered in the British courts. This letter
was read to me by Mr. Dallas. After receiving the letter the President
pardoned the man.
Mr. J. CLAY.--This debate appears to me to arise from causes the most
extraordinary, and such as we are not accustomed to hear assigned on
this floor. The gentleman from Virginia has made a motion justified by
his own knowledge as well as that of my colleague; and this motion is
opposed in a most extraordinary manner. I believe this is the first
instance in which a motion to appoint a committee of inquiry into the
official conduct of a public officer has been opposed. We are told by the
gentleman from Vermont that this House has no right to pass a censure on
a judge, and that judges should be highly independent. I am afraid that
unless great care be taken the doctrine of judicial independence will be
carried so far as to become dangerous to the liberties of the country.
This motion does not, however, affect the character of the judge. Let it
also be recollected, that if the reputation of the judge be at stake, the
reputation of this House also is implicated. I consider this House as
the constitutional guardians of the morality of the Judiciary. Whenever
even suspicion exists as to that morality, a committee of inquiry should
be appointed. For the pure administration of justice is surely more
important than the reputation of any particular judge. I am sorry my
colleague thought it necessary to make any statement of facts to the
House. I believe that more important facts than he has mentioned will be
stated by witnesses. I believe likewise the reputation of the judge will
be better preserved by the appointment of a committee than by assertions
made on this floor by particular members, not responsible elsewhere for
what they allege.
With regard to my opinions in this case, whatever my political
impressions may be, they are entirely unbiassed. I have heard facts
stated, but I cannot say that they have been satisfactorily proved to
my mind. There are other charges equally reprehensible. Under these
circumstances, I ask if the character of the judge is not more implicated
by a discussion of his official conduct on this floor than by appointing
a committee to obtain facts. If he is guilty of the facts alleged against
him, no gentleman will say that he is not impeachable. If he is only
suspected of them, there ought to be a committee, that if guilty he may
be impeached, and if innocent, be freed from the imputation thrown upon
him.
Mr. R. GRISWOLD.--Gentlemen will acknowledge that this is a subject of
great importance and delicacy. No one will doubt but that we ought to
execute our duty so as to preserve the fountains of justice pure, and
that we ought at the same time to treat the important character of a
judge, or of any other high officer, with respect. I do not know but that
this mode of procedure is warranted by precedent. But if it is, it is
unknown to me. As the resolution now stands, I do not think it perfectly
correct. The honorable gentleman from Virginia says he is acquainted with
facts that warrant the proposed inquiry. The question is whether the
House ought to be governed by the opinions of any one member. We know not
what those facts are; the gentleman declines stating them. I do think,
as the subject now strikes me, that the conviction of any one member of
the propriety of this measure cannot warrant the interposition of the
House. Instead of taking the individual opinion of a member, it ought to
be stated that certain facts exist, which, if proved, will justify an
impeachment. I do not know whether these ideas are not incorrect, having
never before contemplated, or had a suspicion that such a motion would be
made.
As to the remarks of the gentleman from Pennsylvania, I do not consider
them as entitled to much weight. If the facts stated by him were of
his personal knowledge, they would undoubtedly merit attention. But he
merely states that which he has received from others, and which amounts
to nothing more than that the judge refused liberty to the counsel to
argue a point of law after it was decided, and confined their argument
to facts. In so doing the judge may have erred, but it was an error
of judgment, for which he cannot be impeached. No lawyer will perhaps
say that it was not the province of the judge to decide the law, and
that he has not the right to prevent counsel from arguing it after his
mind is made up. But this information is not of the knowledge of the
gentleman. Are we then to institute an inquiry into the conduct of a
high officer of the Government merely on hearsay? This has never been
done under our Government. In the late case of Judge Pickering proof was
furnished by the affidavits of witnesses testifying certain facts. I do
not therefore consider it correct to proceed to inquire on the opinion
of any gentleman. The proper course is first to have proofs which will
justify ourselves to our own consciences in making the inquiry--for we
ought not to touch the character of a judge, unless we are satisfied from
facts that there is good reason for an investigation into his conduct.
Gentlemen will not say that making an inquiry into the official conduct
of a judge does not touch his character.
Gentlemen say if this committee find the conduct of the judge to have
been correct, they will make a report to that effect; but it does not
follow that the report will contain all the evidence adduced, and
suspicion may still rest on the character of the judge, and that some
facts may not be stated, which, if stated, would show his misconduct.
Whereas, if the business be brought generally before the House, on
the exhibition of certain facts, the public will be enabled to decide
whether they warrant impeachment or even suspicion. With this view of the
subject, I am of opinion that it will be best to delay acting in this
affair until facts shall be disclosed which will justify the step now
proposed to be taken. I have as high a respect for the opinion of the
gentleman from Virginia as for that of any other member on this floor;
but I doubt whether we can justify our votes on the opinion of any single
member; facts alone ought to govern our opinions. I, therefore, for the
purpose of considering the course most proper to be pursued, move a
postponement of the further consideration of the motion until to-morrow.
Mr. J. RANDOLPH.--Were I the personal enemy of the gentleman who is the
object of this resolution, I should take precisely that course which,
on this occasion, the gentleman from Connecticut seems more than half
inclined to take. That gentleman wishes the resolution to lay until
to-morrow, in order that he may have time to consider whether he can
bring himself to refuse the inquiry altogether. He says that he cannot,
or rather (for he speaks doubtingly) he thinks he cannot see the
propriety of instituting an inquiry without evidence. What evidence?
Nothing short of legal proof--testimony on oath. And what is the object
of the resolution? To acquire that very evidence. If we had the evidence,
to what purpose make inquiry? As, however, the evidence cannot be had
without inquiry, and the gentleman will not grant the inquiry but upon
the evidence, it is plain that if we take the course which he recommends,
we must go without both. Will gentlemen offer objections against inquiry
which are applicable only to impeachment? If an impeachment were moved,
they would have a right to call for evidence. But what is the object
of the present motion? Merely to inquire whether there exists evidence
which will justify an impeachment. But this inquiry we are told cannot be
instituted on mere hearsay, although we have the declaration of a member
in his place. What would be said of a grand jury, who being informed
by one of their body that A or B could testify to the fact of a murder
being committed within their jurisdiction, should refuse an application
to the court to have them summoned, and because they could not find a
bill of indictment unsupported by evidence, should reject that evidence
which might be within their reach? I profess not that tenderness of
conscience which has been displayed by the gentleman from Connecticut. My
conscience teaches me to accuse no man wrongfully, but to deny inquiry
into the official conduct of no one, however exalted his station; and
I had supposed, from his practice, that the gentleman held the same
opinion. For it will be recollected that on the eve of the close of the
last session he had himself instituted an inquiry which went to impeach
the conduct of some of the first officers of the Government. No one on
that occasion stepped in between the demand for an inquiry and those
officers implicated in it. No inquiry was made, and it precluded any
further proceeding on the part of the House, since the charges which had
been attempted to be brought forward would not bear examination. Mr. R.
concluded by calling for the yeas and nays.
Mr. GREGG said he should vote against the postponement, and in favor
of the resolution. The case was somewhat new, but he perceived no
impropriety in giving it the same direction with all the other business
originated in the House. What is this committee to be appointed for? To
investigate facts and report them to the House. Was it not most proper
that gentlemen whose characters were implicated should have, in the first
instance, facts stated privately before a committee, than that parts
of their character should be immediately brought into view before the
House? He recollected one fact not yet alluded to in debate. In 1792,
after the army under the command of General St. Clair was defeated,
great dissatisfaction arose, and the character of the commander was
implicated. The idea was that the expedition had not been conducted with
propriety. The business was brought before Congress. It was understood at
that time, whether justly or not, Mr. G. would not pretend to say, that
the commander-in-chief could not be tried by a court martial. Congress
therefore took up the business, and appointed a committee of inquiry, who
went through a lengthy examination of the subject. Mr. G. mentioned this
precedent that gentlemen might turn their attention to it.
Mr. R. GRISWOLD said--I had hoped that the language used by me, when
I was up before, would not have led gentlemen to suppose that I was
acting as the friend or the enemy of Judge Chase. I am acting in neither
capacity. I am acting only as a member of this House, who ought to be
anxious on an occasion of such importance to take that course which is
most consistent with propriety; that course which results from the duty
this House owes the nation, and that duty which they owe the character
of a judge. It did appear to me that it was not correct to call the
character of a public officer into question unless some necessity should
first appear. No facts are presented on this occasion. The gentleman from
Virginia has said that he is in possession of facts, or of something
which makes him believe that an inquiry is proper, but he does not choose
to communicate those facts. The gentleman from Pennsylvania has given us
his information. The question is, whether it is proper on these light
suggestions to institute a solemn inquiry into the character of this
judge. It appears to me that we ought not to throw any imputation on
the character of any officer without evidence that such an inquiry is
necessary. The case mentioned by the gentleman from Pennsylvania (Mr.
GREGG) does not apply. Dissatisfaction existed in the country and in this
House on the events of a campaign; an inquiry was instituted; but what
was its object? The committee were appointed to inquire into the general
causes of the failure of the expedition; they were not instructed to
inquire into the character of a particular officer.
The gentleman from Virginia has referred to another case, when he says
that we were ready enough to institute an inquiry, and has left it to be
inferred that the inquiry was made without any previous proofs of its
necessity. But certainly on that occasion inquiry was not made without
proof. I suppose the inquiry alluded to was that which related to the
conduct of the Commissioners of the Sinking Fund. It was instituted on
a report made by them, and which we thought was not satisfactory. The
resolution offered was adopted, and inquiry was made, the result of which
is well known to every gentleman. It follows, therefore, that there are
no precedents adduced which apply to the present case.
It is my wish that the proceedings of this House may on this occasion be
perfectly correct, and that we may not be precipitated into the adoption
of this resolution without due consideration. If it is correct to vote
an inquiry in all cases where a member rises on this floor and desires
it, it is correct to vote it in this case. In this case a gentleman
rises and says that he is satisfied an inquiry ought to take place. The
question is, whether it is proper to inquire on the suggestion of a
member? If it is proper, without facts being adduced, then it will be
always proper to inquire whenever any member requires it, and it will be
also proper whenever any individual citizen requires it. This course I
have never thought correct. On the contrary, I think some facts ought to
be previously presented to establish the necessity of an inquiry before
it is voted. In the case of Judge Pickering a very different course has
been pursued. The appointment of a committee of inquiry originated from a
Message of the President. We find in February, 1803, the House received
the following Message:
“The enclosed letter and affidavits, exhibiting matter against
John Pickering, District Judge of New Hampshire, which is now
within Executive cognizance, I transmit them to the House of
Representatives, to whom the constitution has confided a power
of instituting proceedings of redress, if they shall be of
opinion that the case calls for them.”
This Message was referred to a committee, with the accompanying papers,
furnishing evidence of the necessity of an inquiry. But the course
pursued to-day is very different. A gentleman gets up and moves an
inquiry into the conduct of Judge Chase, and says that he is of the
opinion that it ought to be made. The course, I think, is incorrect.
Some facts ought first to be adduced. I repeat it, I am on this occasion
neither the friend nor the enemy of Judge Chase. I am the friend of this
House; I wish its proceedings to be correct, and I hope they will not do
hastily what they may hereafter regret.
Mr. DENNIS.--The only question now before the House is, whether they
will postpone the consideration of the motion on the table. I cannot but
express my surprise that the gentleman from Virginia should oppose this
motion, when several have declared that they are not prepared to vote
on this resolution. Gentlemen ought to recollect that, according to our
rules, on all motions which require the concurrence of the two Houses,
one day’s delay is necessary. Although this resolution is not of this
kind, yet it surely is not of inferior importance.
I believe that the gentleman alluded to by the motion would rather court
than shrink from an investigation of his official conduct. I believe,
also, that it has become necessary, from the discussion of this day, that
an investigation should take place. I am not, therefore, prepared at this
time to say whether I shall not ultimately vote for an inquiry. But it
appears to me that the course proposed is inverting the natural order of
things, inasmuch as it institutes an inquiry not growing out of facts,
but for facts. I believe also that the facts stated, if authenticated,
will furnish no ground for an impeachment. Circumstances attending this
motion show that the gentleman from Virginia does not consider them as
a sufficient ground for an impeachment. The refusal to hear the point
of law discussed was the act of the court. Mr. Chase did not sit alone
on the bench. Another judge must have been associated with and have
concurred with him. If so, why does not the resolution allude to the
other judge? Why select one judge, when both are equally implicated in
the charges?
I believe the most parliamentary way would be for a gentleman to state,
in the form of a resolution, the grounds of impeachment, and then to
refer such a resolution to a select committee for investigation. In this
mode the House may correctly institute an inquiry, and send for persons
and papers. This is the only parliamentary mode of proceeding. In every
case where impeachments have been made, the facts have been stated in
a resolution, concluding with a motion for an impeachment. The House
possesses no censorial power over the judges, except as incidental to
the power of impeachment. If gentlemen are possessed of facts, why not
state them in the form of a resolution, and move an impeachment? Then, if
the facts appeared to me to warrant an impeachment, I would not object
to their going to a select committee, though I believe the most proper
course would be for the House to send for persons and papers, and to
examine for themselves. But it is extremely novel and unprecedented for
the House, without facts, to institute an inquiry into the character of a
high officer of the Government.
May they not, in the same way, extend their inquiry into the conduct of
every judge in the United States, without stating any facts on which the
inquiry is founded? For these reasons I shall vote for postponing the
further consideration of this resolution for one day, on account of the
importance and delicacy of the subject, and the serious deliberation it
is entitled to. I do not know whether, if sufficient time is allowed for
consideration, and I shall be convinced that this course is consistent
with parliamentary usage, I shall not be in favor of an investigation.
Mr. ELLIOT.--When the yeas and nays are called, I shall on every occasion
rise in favor of taking them. I wish the votes I give in this House
entered on the Journal, and known to every citizen of America. The more I
contemplate the course pursued on this occasion, the more extraordinary
and unprecedented it appears to me. The gentleman from Virginia rose,
and, after an elegant exordium, stating that the streams of justice
should be preserved pure, and other fine things, told us that he had
received information of facts that convinced his mind that an inquiry
ought to be made into the conduct of a judge. Suppose the gentleman, on
facts known to himself, had stated his opinion, that an inquiry ought
to be made into the conduct of the President of the United States; we
have the same right to impeach the President as a judge. If the inquiry
would be improper in the one instance, without facts being adduced,
it would be equally so in the other. For we possess no censorial or
inquisitorial powers over the conduct of the judges of the Supreme Court.
If Judge Chase has been guilty of misconduct, let it be stated. If that
misconduct be of a private nature, let the House assume the character
of a grand jury, hold private sittings, receive evidence, and determine
whether the judge shall be impeached or not. The gentleman asks whether
a grand jury in the case of a charge of murder can send for persons.
Undoubtedly they can. But did gentlemen ever hear of their appointing
a committee to inquire whether a man charged with a partial offence
ought to be indicted? We are called on as the grand inquisitors of the
nation, to appoint an inquisitorial committee to get evidence; for it is
granted that as yet we have none. I believe that no committee of this
nature ought to be constituted, without previously ascertaining facts
that will warrant the delegation of such great power. No accusation,
even, is before us; but we are called upon to appoint a committee to
look one up--a committee to be invested with power to send for persons
and papers--a committee to inquire in private. I will never consent to
the appointment of such a committee, until facts that will justify the
inquiry are stated.
The facts adduced by the gentleman from Pennsylvania, if proved, could
not induce me to believe that the judge is impeachable. I may suspect
that his conduct was erroneous and improper, but I cannot conceive it
proper to impeach a single judge for the act of the court. Believing,
therefore, this conduct unprecedented, unparliamentary, and replete with
improprieties; believing it novel; believing that, in an affair of so
much consequence, we ought not to proceed with precipitation; believing
that we are entitled to demand one day to reflect upon it--I am proud,
on this occasion, to record my vote in favor of the postponement until
to-morrow; and if it were for a week, I should with equal pride and
pleasure vote for it.
Mr. HOLLAND moved an adjournment.
Mr. J. RANDOLPH said, that considering a motion to adjourn equivalent to
a postponement for a day, he moved the taking the yeas and nays upon it.
Mr. HOLLAND moved an adjournment, on which the question was taken--yeas
52, nays 62.
YEAS.--Willis Alston, jun., Nathaniel Alexander, Simeon
Baldwin, George W. Campbell, John Campbell, William Chamberlin,
Martin Chittenden, Clifton Claggett, Manasseh Cutler, Samuel
W. Dana, John Davenport, John Dennis, Thomas Dwight, James
Elliot, Edwin Gray, Gaylord Griswold, Roger Griswold, John A.
Hanna, Seth Hastings, James Holland, David Hough, Benjamin
Huger, Joseph Lewis, jun., Henry W. Livingston, Thomas Lowndes,
Matthew Lyon, Nahum Mitchell, James Mott, Thomas Plater,
Samuel D. Purviance, Erastus Root, Tompson J. Skinner, John
Cotton Smith, John Smith of Virginia, Joseph Stanton, William
Stedman, James Stephenson, Samuel Taggart, Samuel Tenney,
Samuel Thatcher, David Thomas, George Tibbits, John Trigg,
Philip Van Cortlandt, Killian K. Van Rensselaer, Daniel C.
Verplanck, Peleg Wadsworth, Matthew Walton, Lemuel Williams,
Marmaduke Williams, Joseph Winston, and Thomas Wynns.
NAYS.--David Bard, George Michael Bedinger, William Blackledge,
Adam Boyd, John Boyle, Robert Brown, Joseph Bryan, William
Butler, Joseph Clay, John Clopton, Jacob Crowninshield, Richard
Cutts, William Dickson, Peter Early, Ebenezer Elmer, John
W. Eppes, William Findlay, James Gillespie, Andrew Gregg,
Thomas Griffin, Samuel Hammond, Josiah Hasbrouck, William
Hoge, David Holmes, John G. Jackson, Walter Jones, William
Kennedy, Nehemiah Knight, Michael Leib, John B. C. Lucas,
Andrew McCord, David Meriwether, Samuel L. Mitchill, Nicholas
R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas
Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah Palmer,
John Patterson, Oliver Phelps, John Randolph, jun., Thomas M.
Randolph, John Rea of Pennsylvania, John Rhea of Tennessee,
Jacob Richards, Thomas Sammons, Thomas Sanford, Ebenezer
Seaver, James Sloan, John Smilie, John Smith of New York,
Richard Stanford, John Stewart, Philip R. Thompson, Abram
Trigg, Isaac Van Horne, Joseph B. Varnum, John Whitehill, and
Richard Wynn.
The question of postponement recurring,
Mr. HUGER considered the course contemplated by the resolution as
improper, unparliamentary, and unprecedented. To make up his mind on the
course proper to be pursued, he was in favor of the postponement.
Mr. HOLLAND observed that he had moved an adjournment to allow those
gentlemen time for reflection who had not yet made up their minds on
the propriety of the motion. He was himself of this number. Having been
allowed no time for reflection, he did not feel perfectly satisfied with
the appointment of a committee of inquiry before any facts had been
substantiated. Desiring further time to form his judgment, and seeing no
occasion for precipitation, he should vote in favor of a postponement.
Mr. G. W. CAMPBELL.--I will not, at this late hour, detain the House
with the expression of my ideas in detail. I am as desirous as any
member of this House that the streams of justice should flow pure and
unsullied, as on their purity depend the safety and liberties of the
people of the United States. But when we are about to enter into measures
for preserving them clear, we owe it to ourselves to preserve order in
our conduct, and to act in such a manner as we shall be able to justify
to our constituents. Every member of this House, on such an occasion,
ought to be as cautious in his proceeding as a judge in delivering his
opinions, lest, while we are condemning the conduct of the judge, we
ourselves go astray from our duty. For this reason, I am against the
adoption of a measure which may throw a censure on a character invested
by the United States with high authority, until I am convinced we have
sufficient grounds for doing so. The resolution on the table can have
but one object, to wit: the direction of an inquiry whether sufficient
evidence can be procured to authorize an impeachment. I conceive that
this House cannot proceed in any other way. I am therefore of opinion,
that, before the vote for an inquiry, there ought to be probable grounds
that facts exist that authorize an impeachment, and that evidence can
be procured of their existence. I am not prepared to say, from any
thing which has been adduced, that such evidence does exist. I conceive
that until probable grounds are shown, we ought not to authorize such a
procedure, inasmuch as it may establish a precedent that we may hereafter
regret--a precedent which will put it in the power of any member to move
and obtain an inquiry into the conduct of the President, a judge, or
any other officer under the Government. Under these circumstances, I am
not prepared to say this is the regular course of proceeding. I do not
profess to have much knowledge of parliamentary proceedings, and have
therefore waited, before I expressed my opinions, to hear such precedents
as gentlemen could adduce. Having heard none, I conclude none exist.
I conceive that the act of this House, in voting for a committee of
inquiry, is equivalent to the expression of the opinion that they have
evidence of the probable grounds of the guilt of the judge. The gentleman
from Virginia has told us that the powers of this House are, in some
degree, like those of a grand jury. I agree that they have all the
powers of a grand jury, and it is on this ground that I deny the power
now contended for. I say that a grand jury has no right to send for
testimony: they have only a right to receive testimony from any one of
their body, and to receive such witnesses as the court may send them. If,
then, there be evidence in the present case, let us act upon it, even
though it be _ex parte_, and although that might, perhaps, be going too
far.
I repeat it, I have heard no statement satisfactory to my mind that there
are probable grounds for proceeding in this business. It is true, the
gentleman from Pennsylvania has made a statement, but that statement
appears to me to depend not so much on facts as on opinions; and it
is not my wish to decide on the propriety of the conduct of the judge
until the facts are before us. It is certain that a judge has a right to
control counsel, and to say when his mind is made up, while it is also
his duty to hear the allegations that shall be made.
In addition to these reasons for a postponement, I am also in favor of
it, because, whenever a sincere desire exists to gain information, which
can only be done by allowing further time, I shall always be in favor of
it, when no material injury can result from the indulgence.
Mr. MOTT.--I am in favor of the postponement, because I wish time for
consideration, and because I am against the resolution itself. I think
it is improper to go into such an inquiry before specific charges are
laid before the House, when it will be proper for the House to consider
whether those charges are sufficient to sustain an impeachment; then it
will be proper to proceed, and not till then. No charges have yet been
laid before the House: we have only been told by one member that he is
satisfied sufficient grounds exist.
Mr. J. RANDOLPH was sorry to be obliged to trespass again on the patience
of the House, but the direct application made to him by the gentlemen
from Tennessee and South Carolina, imposed upon him the necessity of
stating his reasons for proceeding in what they were pleased to term so
precipitate a manner. They ask, why not have laid the resolution on the
table by way of notice to the House? Because, sir, I cannot in a matter
of extreme delicacy make the opinions of other gentlemen the standard of
my own actions. I should have conceived the character implicated in the
resolution as having just cause of complaint against me, had I not been
ready to decide in a moment on it, and did I not press its immediate
decision. I should have deemed it an act of cruel injustice to have
hung the inquiry over his head even for a day. I should have expected
the reproach of setting suspicions afloat whilst I avoided examination
into them; for I should have deserved it, had I pursued the course which
gentlemen wish to adopt. I can see no difference between hanging up this
motion for a day or a year but the mere difference of time. What is the
object to be obtained? Do we wait for evidence, or any information,
which will assist us in forming a correct opinion? Not at all. To-morrow
the question will recur upon us--“Is it proper, from what has already
appeared, to institute an inquiry into the conduct of this officer?” And
this we are as competent to decide at this moment as at any future day.
When, however, gentlemen consider a resolution to make inquiry the same
as an inquiry already had, I am not surprised at finding myself opposed
to them in opinion. I repeat that all their arguments are applicable
to a motion of impeachment only. But it seems that no precedents have
been adduced, and time is wanted to hunt them up. Gentlemen should
recollect that but two cases of impeachment have taken place under this
Government; one of a Senator from Tennessee, the other of a district
judge of New Hampshire. By what precedents were the proceedings in these
cases regulated? How is it possible in a Government hardly in its teens,
where new cases must daily occur, as its various functions are called
into exercise, to find precedents? It did so happen, in the case of the
Senator from Tennessee, that the information on which his impeachment
was grounded came from the Executive. But suppose that information had
not been communicated by the Executive? Would that have precluded all
inquiry? Suppose, too, in the case of Mr. Pickering, that no information
had been received from the Executive, and that a gentleman from New
Hampshire had risen and said, “However painful the task, I deem it my
duty to state that the conduct of the judge of the district in which I
reside, has been such as renders him unfit for the important station
which he holds, and I therefore move for an inquiry into his conduct.”
Would the House have denied the inquiry? Will they rely altogether on the
attorney of the district, whose interest it is to be well with the judge,
and whose patience must be worn out with his misconduct before he will
undertake to call the attention of Government to it? Are gentlemen aware
of the delicate situation in which those officers are placed? Suppose
information had been given to a member of the malfeasance of a judge by
a person who should say: “It is not pleasant to originate accusations;
those who come forward in these cases undertake an invidious task;
while therefore I wish my name not to be mentioned, I shall be ready,
when called upon by proper authority, to give my testimony.” This is a
hypothetical case, but one by no means improbable. Would it not be a
point of honor not to expose the name of the informant?
But, say gentlemen, the charge is of a general nature. While I do not
admit the force of this remark, supposing it to be correct, I deny
that it is a general charge. The inquiry is general, but it is founded
on a statement made by the gentleman from Pennsylvania. I made no
other statement. I have said that I believed there existed grounds of
impeachment. What they are I shall not state here. They may be those
exhibited by the gentleman from Pennsylvania, or they may be others. Will
gentlemen assert that the statement of facts made by the gentleman from
Pennsylvania will not, if true, warrant an impeachment? What does it
amount to? A person under a criminal prosecution, having a constitutional
right to the aid of counsel in his defence, has, by the arbitrary and
vexatious conduct of the court, been denied this right. Such is the
nature of the charge. Has it come to this, that an unrighteous judge may
condemn whom he pleases to an ignominious death, without a hearing, in
the teeth of the constitution and laws, and that such proceedings should
find advocates here? Shall we be told that judges have certain rights,
and, whatever the constitution or laws may declare to the contrary, we
must continue to travel in the go-cart of precedent, and the injured
remain unredressed? No, sir, let us throw aside these leading-strings and
crutches of precedent, and march with a firm step to the object before us.
As to the motion of postponement, Mr. R. said it was of little
consequence to him whether it prevailed or not. On a charge of specific
malfeasance, he thought it impossible to refuse an inquiry. Whatever
should be the result, he should rest satisfied with having discharged
his duty to the House and to the nation. Believing the circumstances to
demand inquiry, he had made it. Without circulating whispers of reproach,
he had given the person implicated that opportunity of vindicating
his character which he himself should require if he stood in the same
unfortunate situation.
The committee rose, and the House adjourned.
FRIDAY, January 6.
_Importation of Slaves._
Mr. BARD.--For many reasons this House must have been justly surprised
by a recent measure of one of the Southern States. The impressions,
however, which that measure gave my mind, were deep and painful. Had I
been informed that some formidable foreign power had invaded our country,
I would not, I ought not, to be more alarmed than on hearing that South
Carolina had repealed her law prohibiting the importation of slaves.
In the one case we would know what to do. The emergency itself would
inspire exertion, and suggest suitable means of repelling the attack.
But here we are nonplussed, and find ourselves without resource. Our
hands are tied, and we are obliged to stand confounded, while we see the
flood-gate opened, and pouring incalculable miseries into our country. By
the repeal of that law, fresh activity is given to the horrid traffic,
which has been long since seriously regretted by the wise and humane,
but none have been able to devise an adequate remedy to its dreadful
consequences.
Congress has but little power, or rather they have no power to prevent
the growth of the evil. To impose a tax on imported slaves is the
extent of their power; but every one must see that it is infinitely
disproportionate to what the morality, the interest, the peace, and
safety, of individuals, and of the public, at this moment, demand.
And though in regard to their present case the power of the General
Government may be insufficient to check the mischief, yet I hope they
are disposed to discourage it, as far as they are authorized by the
constitution. Therefore I beg leave to offer the House the following
resolution:
“_Resolved_, That a tax of ten dollars be imposed upon every
slave imported into the United States.”
Ordered to lie on the table.
_Official conduct of Judge Chase._
The House resumed the consideration of the motion of the fifth instant,
“for the appointment of a committee to inquire into the official conduct
of Samuel Chase, one of the Associate Justices of the Supreme Court of
the United States,” and the said motion, as originally proposed, being
again read, in the words following, to wit:
“_Resolved_, That a committee be appointed to inquire into the
official conduct of Samuel Chase, one of the Associate Justices
of the Supreme Court of the United States, and to report their
opinion whether the said Samuel Chase hath so acted in his
judicial capacity, as to require the interposition of the
constitutional power of this House:”
A motion was made and seconded to amend the same, by inserting, after
the words “one of the Associate Justices of the United States,” the
following words, “and of Richard Peters, District Judge of the district
of Pennsylvania.”
Mr. SMILIE.--When the motion now under consideration was made yesterday,
I should have felt surprised at the course which the debate took, had
I not often witnessed such things in former times. It seems to be
considered as improper that a gentleman should bring forward a motion
for an inquiry into the official conduct of a public officer, and expect
the House to comply with his request, unless he should at the same time
produce such evidence as shall prove the facts charged. If this course of
proceeding be correct, I have ever been in error. What does the gentleman
from Virginia ask? Suppose he has taken exception to the conduct of the
judge from some facts which have come to his own knowledge. Under such
circumstances it will be allowed that it is the duty of the House to make
the inquiry. When the question shall be whether an impeachment shall be
preferred, it will be proper that evidence should be produced. But now
only a committee is asked to receive evidence, and to determine whether
it be such as in their opinion will afford grounds for an impeachment.
It is impossible for me to conceive any way that can be pursued which
will be more favorable to the person whose character is implicated, than
that which is proposed. It is merely to inquire whether such facts can
be sustained as will afford grounds for an impeachment. Certainly in
this stage of the business it is not necessary to produce evidence to
the House, as the House are not competent to receive testimony, which
a committee is. It is a rule of this House that so much respect is due
to a member, that if he states that he possesses information proper to
be communicated to the House, but which in his opinion ought not to be
done but with closed doors, that, in such case, the doors shall be shut
without any vote of the House.
Surely, then, on the request of a member for a committee of inquiry, that
measure ought to be adopted. This, in my opinion, is the best course
that can be pursued for the person implicated. There is, it is true,
thereby expressed an opinion of some one member that this judge has done
wrong. So far his character is implicated; this is the only possible
way in which it is implicated. The committee are to inquire whether
there are grounds for an impeachment or not. If they report that there
are not grounds, the accusation will be dismissed; and if the report is
that there are grounds, the House will at once perceive the necessity of
taking this step to ascertain their existence.
Another ground of resistance is taken. It is said there are precedents
for this proceeding. I believe that all precedents must have an origin;
and that one person has as good a right to establish them as another.
Our Government is young, and only two cases of impeachment have occurred
under it. Most of our precedents respecting parliamentary proceedings are
borrowed from England, and, if precedents are necessary in this affair,
we must resort to that country for them. My opinion is that they are not
necessary, and that common sense and the reason of the thing are all
that are necessary to guide our decision in this case. There is, however,
in the British annals, no deficiency of precedents. The first I shall
mention is to be found in the case of the Earl of Strafford. I may be
told that this precedent was established in turbulent times: I may also
be told of the improper mode of proceeding. I do not pretend to vindicate
the whole course of procedure. I think it was wrong. But with regard to
the first stages of the business, I believe them to have been correct. It
will be seen that, in that instance, a more direct mode was pursued than
is proposed in the present case.
The precedent I allude to will be found in Hume’s History, vol. 2,
page 249. That historian says,--“A concerted attack was made upon the
Earl of Strafford in the House of Commons. It was led by Pym, who,
after expatiating on a long list of popular grievances, added, ‘we must
inquire from what fountain these waters of bitterness flow; and though,
doubtless, many evil councillors will be found to have contributed their
endeavors, yet is there one who challenges the infamous pre-eminence,
and who, by his courage, enterprise, and capacity, is entitled to the
first place among these betrayers of their country. He is the Earl of
Strafford, the Lieutenant of Ireland, and President of the Council of
York, who, in both places, and in all other provinces where he has been
intrusted with authority, has raised ample monuments of tyranny, and
will appear, from a survey of his actions, to be the chief promoter of
every arbitrary council.’ Many others entered into the same topics, and
it was moved that Strafford should be impeached. Lord Falkland alone,
though the known enemy of Strafford, entreated the House not to act with
precipitation. But Pym replied that delay would blast all their hopes;
without further debate the impeachment was voted, and Pym was chosen to
carry it up to the Lords.”
In this case it does not appear that any evidence was called for; a
member of the House of Commons got up and declared his opinion of that
officer, and the same session an impeachment was voted. This course of
proceeding is very different from that now proposed. I will now refer to
a more modern precedent which at the time does not appear to have been
objected to. It occurred in the reign of George I., and will be found
stated in Russel’s “Modern Europe,” vol. 4, page 398.
“A new Parliament was called in which the interest of the Whigs
predominated, and a secret committee, chosen by ballot, was appointed to
examine all the papers, and inquire into all the negotiations relative
to the late peace, as well as the cessation of arms by which it was
preceded. The Committee of Secrecy prosecuted their inquiry with the
greatest eagerness, and, in consequence of their report, the Commons
resolved to impeach Lord Bolingbroke, the Earl of Oxford, and the Duke of
Ormond, of high treason.”
One circumstance is worthy of attention. A cause of dissatisfaction
at the conduct of the judge has undoubtedly prevailed. Whether he is
wrongfully accused I will not say; but the dissatisfaction is manifest;
for the representatives of two respectable States lately came forward and
opposed his being assigned to circuits which embraced their States. This
single fact ought to make an impression on the House.
It is alleged that there is no proof before the House; but one thing is
notorious--is universally known. It is this, that this man (Fries) was
tried before that judge for his life, and was tried without being heard.
This fact cannot be disputed. When we consider the importance of the
life of a citizen, and know that such an event has taken place, is it
not the duty of the only body competent to inquire into the fact? With
other gentlemen, I believe that the fountains of justice ought to be kept
pure; I believe also that the judges are like other men, and that like
them they are subject to the common frailties of human nature; and I do
believe that when the frailties of human nature produce such effects, the
House cannot be justified to themselves or their country without making
an inquiry. Our duty to our country calls for it; our duty to the man
who is implicated also calls for it. If innocent, a proper regard to his
character claims it; and his friend from Maryland informs us that he will
rejoice at this opportunity of coming forward and vindicating himself.
If, then, the inquiry be equally necessary for placing the character
of the man upon its proper footing, and for preserving the purity of
justice, how can the House resist it?
Mr. DENNIS said he had only expressed an opinion that such an
investigation would be rather solicited than avoided by Judge Chase.
Mr. LEIB.--I am by no means an enemy to inquiry, but I am not a friend to
the partiality of this resolution. We are told that it is grounded on the
misconduct of the Circuit Court in Philadelphia on the trial of Fries.
If one judge of that court was guilty of misconduct, the other attending
judge must have been equally guilty. The conduct complained of was the
act of the court, and not of an individual judge. This resolution ought
therefore to embrace both the attending judges. My opinion is that both
are criminal, and ought to be brought to the bar of justice. I therefore
move an amendment of the resolution by introducing the name of Richard
Peters, so as to embrace an inquiry into the conduct of both judges, and
call for the yeas and nays on the amendment.
Mr. J. RANDOLPH.--I wish to state for the information of those gentlemen
who were not in the last Congress, that the gentleman from Pennsylvania,
whose statement, thus made, is the groundwork of the present inquiry,
did not offer any matter which tended to impeach the conduct of Mr.
Peters, while there was a specific charge of misconduct brought against
the other judge. In consequence of this charge I conceived it my duty to
make an inquiry into the official conduct of Judge Chase. I mention this
circumstance to show that however the charge of partiality may apply to
the resolution, it cannot apply to the mover.
Mr. LEIB.--I do not charge the mover with partiality, but the resolution
with embracing one judge instead of two. Judge Peters was on the bench
at the time. This outrage upon justice was the act of the court. How the
conduct, therefore, of one judge shall claim investigation, while that
of the other is passed over in silence, to me is mysterious. I think
impartial justice calls for an investigation into the conduct of both.
Mr. SMILIE said there could be no doubt that if the court was agreed,
Judge Peters had been equally guilty of misconduct. On the trial of
Fries, Mr. Chase presided, and Mr. Peters attended. If Judge Peters
concurred in the decision, he was equally culpable.
Mr. NICHOLSON.--This resolution is grounded upon a statement made
during the last session, by a member from Pennsylvania, implicating the
character of one of the justices of the Supreme Court. Upon information
thus given, my friend from Virginia has thought himself bound to bring
the business before the House, that an inquiry may be made into his
conduct. For myself I will never hesitate, I care not who the person
implicated may be, and however exalted his station, to give my vote for
inquiring into his official conduct, when a member of this House rises
in his place, and states that, in his opinion, he has been guilty of
misconduct. For this reason I shall vote for the amendment; it having
been stated by a member that Judge Peters was on the bench and did concur
with Judge Chase.
And on the question that the House do agree on the said amendment, it was
resolved in the affirmative--yeas 79, nays 37, as follows:
YEAS.--Willis Alston, jun., Nathaniel Alexander, Phanuel
Bishop, William Blackledge, John Boyle, Robert Brown, Joseph
Bryan, William Butler, John Campbell, Joseph Clay, John
Clopton, Jacob Crowninshield, Richard Cutts, John Dennis,
William Dickson, Peter Early, James Elliot, Ebenezer Elmer,
John W. Eppes, William Eustis, William Findlay, James
Gillespie, Edwin Gray, Andrew Gregg, Thomas Griffin, John A.
Hanna, Josiah Hasbrouck, Seth Hastings, William Hoge, James
Holland, David Holmes, Benjamin Huger, John G. Jackson, Walter
Jones, William Kennedy, Nehemiah Knight, Michael Leib, Joseph
Lewis, jun., Thomas Lowndes, John B. C. Lucas, Andrew McCord,
David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah
Morrow, Anthony New, Thomas Newton, jun., Joseph H. Nicholson,
Gideon Olin, John Patterson, Oliver Phelps, John Randolph,
jun., Thomas M. Randolph, John Rea of Pennsylvania, John Rhea
of Tennessee, Jacob Richards, Erastus Root, Thomas Sammons,
Thomas Sanford, Ebenezer Seaver, Tompson J. Skinner, James
Sloan, John Smilie, John Smith of Virginia, Richard Stanford,
Joseph Stanton, James Stevenson, John Stewart, David Thomas,
Philip R. Thompson, John Trigg, Philip Van Cortlandt, Isaac
Van Horne, Joseph B. Varnum, Daniel C. Verplanck, Marmaduke
Williams, Richard Wynn, Joseph Winston, and Thomas Wynns.
NAYS.--Simeon Baldwin, David Bard, George Michael Bedinger,
Silas Betton, Adam Boyd, William Chamberlin, Martin Chittenden,
Clifton Claggett, Manasseh Cutler, Samuel W. Dana, John
Davenport, Gaylord Griswold, Roger Griswold, David Hough,
Samuel Hunt, Thomas Lewis, Henry W. Livingston, William
McCreery, Nahum Mitchell, Samuel L. Mitchill, James Mott,
Beriah Palmer, Thomas Plater, Samuel D. Purviance, Joshua
Sands, John Cotton Smith, John Smith of New York, Henry
Southard, Samuel Taggart, Samuel Tenney, Samuel Thatcher,
George Tibbits, Abram Trigg, Killian K. Van Rensselaer, Peleg
Wadsworth, John Whitehill, and Lemuel Williams.
Mr. LOWNDES.--Were I to be governed by considerations other than those
resulting from a sense of duty, I should vote for this resolution, as
I believe it would afford the character implicated the readiest mode
of vindication. But I do not feel so high a respect for the opinion of
any one member as to give up my opinion to his, as to the course most
proper to be pursued on this occasion. The gentleman who has offered this
resolution says, that the facts on which it is founded are within his own
knowledge. Let the gentleman then lay them before the House. Otherwise we
shall legislate, not on the facts before us, but merely on the opinion
of a single member, on facts only known to himself. We are told that
this motion is founded on the statement of an honorable gentleman from
Pennsylvania. What is that statement? That one of the counsel in the
trial of Fries informed him that the judge declared the counsel had no
right to argue a point of law after the mind of the court was made up. I
ask if any gentleman is prepared to say that the judge was wrong? I am
not prepared to say so. While, too, I am unwilling to detract from the
respect due to the statement of the gentleman from Pennsylvania, I am
equally unwilling to subscribe to his opinions. He may have misconceived
the information communicated to him. It is said that it is necessary to
preserve pure the streams of justice. I agree in this remark, and I say
that the resolution on the table goes to destroy the independence of the
judges, and of consequence to pollute the streams of justice; to make the
judges the flexible tools of this House. It is impossible that under such
circumstances men of talents and integrity will take seats on the bench,
when their character shall be liable to be scrutinized without any facts
being previously adduced.
I think it absolutely necessary that this resolution should not pass. For
if it passes, it will establish a precedent that any member may procure
an investigating committee to inquire into the conduct of any executive
or judicial officer merely upon his opinion, unsupported by facts, that
such an inquiry is necessary. Suppose parties to be nearly equally
divided; a member has only to propose an inquiry into the conduct of any
officer to whom he may feel inimical, and thereby throw a cloud upon his
character, and render him the object of suspicion. Thus do I fear that
this precedent will furnish the instrument of vengeance of one party
against another. The price we pay for our liberties is the existence
of parties among us; but it becomes us rather to restrain than to
invigorate their passions. If we establish this precedent we shall render
impeachment so easy, as greatly to facilitate the means of oppression.
Mr. LOWNDES concluded by saying, that in this affair he threw party
considerations entirely out of view. He was personally unacquainted with
Judge Chase, and if there was a single affidavit of his misconduct, the
appointment of the committee of inquiry should have his vote; but that,
under the circumstances attending it, he considered the measure improper
in every point of view in which he could consider it.
Mr. FINDLAY observed, that though the abstract right of the members
to move for an inquiry into the conduct of public officers, in order
to find whether presumptions against their character afforded ground
for impeachment, was not expressly denied, yet the manner in which the
opposition to the present resolution was conducted was equal to denying
the right. He trusted, however, that the House would support this right,
as it was one of the most important of any with which they were vested.
It grew out of the power of impeachment, and it was necessary for the
exercise of that power, and was justified by precedents. By the rules of
the House any member has a right to have the doors shut, in order to move
such a resolution as he thinks proper. This has been usual in cases of
impeachment in Britain, from which we derive the forms of impeachment.
There it has been common to shut the doors, and for a member to move for
an impeachment of a public officer, and to procure the officer impeached
to be taken into custody before there was time or opportunity to take
any other testimony than the information stated by the member who moved
the resolution, probably supported by public fame. Taking the party into
custody was necessary to the circumstances of that country and the extent
of punishment, which might not only affect the liberty and property, but
even the life of the party found guilty. It was necessary, because of the
influence of the powerful nobility, who might have it in their power to
stand in their defence; but, as all the penalties in the power of this
Government to inflict by impeachment only affect the official trust and
character, taking into custody is unnecessary.
He observed, that the arguments in opposition to the resolution turned
chiefly on the ground of expediency and of precedent.
In his opinion, it appeared not only expedient but necessary, from the
notoriety of facts on which the resolution was founded; that they were
publicly known and had impaired confidence in these judges, could not
be denied. That it was known to Congress during the last session was
acknowledged. It was not only known, but Congress acted on it. A bill was
in progress before this House, appointing the attendance of judges to
particular districts--the members of two respectable States, in which,
by the bill, Judge Chase was appointed to attend, objected unanimously
to that appointment, because they had not confidence in him; and the
facts on which the resolution is founded were stated on the floor, upon
which the House altered the bill and appointed another judge to that
district. This was a strong testimony that Congress believed that this
open expression of want of confidence in that gentleman was justified by
the facts that had been stated. He said, that though he had not at that
time a seat in the House, he had expected an inquiry to be made into the
causes of this want of confidence at that time. Perhaps it was prevented
by the shortness of the session.
It is expedient for the character of the gentlemen and for the public
good; for the gentlemen themselves, if they are innocent or have acted
on justifiable ground; it is necessary that their characters may be
vindicated, and confidence in their public conduct restored. It is
expedient for the public good, because if the judges are guilty in the
manner stated--if they have justly lost the confidence of the people and
of Congress, as it appears, by the transaction of last session, one of
them has done, the case ought to be examined and the citizens protected;
for if he was unfit to preside on the bench for one district, he is unfit
to preside in another. It is expedient, in order to secure the confidence
of the citizens in the Government itself.
But precedents are called for by the gentlemen opposed to the resolution,
and several of them contend that such special facts should be stated as
would be unexceptionable ground of impeachment, before the inquiry is
gone into. A gentleman from Vermont, (Mr. ELLIOT,) who argued yesterday
in favor of postponement for further information on the subject, in the
same argument said that he never would agree to the appointment of a
committee of inquiry, until the charges were first stated and proved to
his satisfaction. Mr. F. said he was astonished at this inconsistency.
If the facts were first stated and established, appointing a committee
of inquiry would be an absurdity. What would they inquire after but what
they already knew? That gentleman and others, in order to defeat the
resolution, gave the object of it an odious designation: they called it
an inquisition, and spoke of it in such terms as if it was the well-known
Spanish law of that name. The character of that court was too well known
to the members of this House to require definition; it was sufficient
to say that in it witnesses were examined without the knowledge of the
party accused; that it compelled the accused to give testimony against
themselves, and had authority to pass sentence of the most dreadful
kind, without appeal. The gentlemen knew that no such thing was intended
by the resolution. The character of the judges had been impeached in
public opinion by numerous citizens of all descriptions. Congress on
that account gave a decisive testimony of want of confidence in one of
them. The object of the resolution was to inquire whether there was a
real foundation for this want of confidence and ill fame. If Congress
did not make inquiry in such cases, who was to do it? It did not by
the constitution belong to any other authority; every other method of
proceeding would be as ingeniously objected to as the one proposed, by
those who wished to prevent further proceedings in the case; denying the
means of bringing forward impeachment, had the same effect as if the
power of impeachment was renounced.
The power of this House has been asserted to be similar to that of a
grand jury; this seems to be conceded on both sides, but though it bears
a resemblance, it was not strictly so--it was more extensive. Grand
juries were authorized to present such indictments or such complaint or
information as were submitted to them by the Attorney General, or which
they knew of their own knowledge. The attorney also inquires if there
is probable ground for the complaint, and brings the witnesses before
the jury, who examine them to establish the facts alleged; but this
House has no officers authorized to make inquiry and bring forward the
business in due form; therefore the House possess both the power of the
Attorney General and the grand jury, with relation to impeachment; for
where a power of decision is given, all the powers necessary to carry
that decision into effect are implied. The making inquiry, procuring
witnesses, or other testimony, and preparing the case in due form, is the
object of the resolution; and if the House does not do it in this or some
other such method, there is no other agent authorized to do it.
With respect to precedent and parliamentary usage, Mr. F. said he had
formerly examined many, but was not prepared to state them at this
time, and did not think them necessary on this occasion. In all the
examples of impeachment by the British Parliament, from the reign of
Henry VIII., when parliamentary power was reduced to a mere shadow, till
the present time, when the parliamentary power has been amply enlarged
and established, and their proceedings become more uniform, there will
be shades of difference found in all of them, arising from various
circumstances; we have few precedents of our own, and of these few none
of them apply to the present case. It is the constitutional duty of this
House to impeach, when impeachment is necessary, and of the Senate to
decide on impeachments; but with respect to the manner in which each
House should proceed, they are not trammelled by forms nor entangled in
precedents.
There are, however, examples of proceedings both with the British
Parliament and with us, as similar to the method now proposed as the
various cases would admit. With ourselves, the case of the unfortunate
Western expedition mentioned by my colleague (Mr. GREGG) yesterday,
was much more to the purpose than the gentleman from Connecticut (Mr.
GRISWOLD) was willing to admit. Mr. F. said he had the honor to be one
of the committee of inquiry which sat on that subject a great proportion
of two sessions. The expedition was too late in setting out to the Indian
country; they were said to have been illy provided with necessaries,
and long detained for want of them; a large proportion of the army were
killed or taken by the savages, and all the stores with the army left.
The citizens were discontented, and numerous complaints were heard, but
none knew with certainty whom to blame; a committee was appointed to
examine witnesses and report the testimony to the House, in order to
discover the party who had been to blame. Some had charged it on the
commanding General, others on the Secretary of War, and others on the
Commissary of Military Stores, and these last endeavored to wrest the
blame from themselves and fix it on the General. It was certain that a
great misfortune had happened, but it was not certain that any officer
was to blame; no charge had been made to Congress against any officer,
yet Congress thought proper to make an inquiry, and it was not opposed on
account of want of form, or want of precedents, by any of the friends of
the parties. Towards the close of the first session, the committee made a
concise report, referring to a great amount of testimonies. Some of the
parties implicated by the report thought themselves injured by it, and
it was alleged that other witnesses ought to be examined. Consequently,
at the next session, the business was recommitted to the same committee,
and as it was near the close of the last session of that Congress, before
all the witnesses were procured and examined, and the parties heard by
the committee, each of the parties wrote and delivered to the committee
a large book of explanations and defence. The committee reported a large
wooden box full of testimony, of original letters and instructions,
and the three books of explanations and defence accompanied with some
observations. It was not possible for that Congress to enter on the
business, and the cause being of a transient nature, and the parties who
applied for the second inquiry not wishing a disclosure of the testimony,
the business was not afterwards entered on; but the mass of testimony,
&c., is yet in possession of Congress. This, it is presumed, applies well
in favor of the present resolution.
Gentlemen object to the resolution because of the indelicacy of
implicating the character of a judge. They seem to believe the character
of a judge to be sacred and immaculate. But are not judges men? Are they
not men subject to like passions and like feelings as other men? Judges
and other official characters voluntarily surrender a part of the rights
they enjoyed in common with other citizens, in return for the honors and
emoluments of office; others have a right to the privilege of trial by
jury, in the decision of all charges against them; but public officers,
by accepting of office, subject themselves under this Government, to
trial by impeachment. Subjecting judges to impeachment, indicates,
unequivocally, a constitutional opinion that judges would be even more
liable to transgress than other citizens, and might transgress in a more
aggravated manner than mere citizens. This mode of trial, however, in
this country, is become almost a harmless thing; it is deprived of more
than half its terrors. It does not reach life or property, but only the
official character.
Mr. F. said he was a friend to the independence of judges, but that
all independence in all Governments had its limits and restraints. It
was not provided for the aggrandizement of the judges, but for the
protection of the citizens. So far as it is applicable to this purpose,
it is necessary, but any further, it is injurious and subjected to
restraint. Under no Government with which we are acquainted are the
judges rendered so independent as that of the United States. In Britain,
from which we have derived the mode of our judiciary, the judges were
appointed during pleasure; till, little more than a century ago,
they were rendered independent by the Revolution Parliament for the
security of the people against the encroachments of the Monarch, and
the overbearing influence of a very powerful nobility; and for this
purpose it was not only salutary, but absolutely necessary. But even with
that boasted independence, that Judiciary is subjected to restraints
and modes of correction not provided in the Federal Constitution. The
judges are liable to be removed from office by the vote of both Houses
of Parliament, without trial. They are liable to be removed, or their
standing changed by act of Parliament. That Parliament, on whose act
their independence depends, can repeal the act; the two Houses of
Parliament can make and unmake their Kings. They are also liable, by an
act of attainder, not only to lose their office, but their estate, the
honor of their families, and even their lives.
The Judiciaries in all the States of the Union are rendered less or more
independent; some are appointed for shorter and some for longer periods.
In New Jersey, they are appointed for seven years; they were so in
Pennsylvania formerly; since the revision of the constitution they are
appointed during good behavior; they are, however, subjected not only
to removal by impeachment, but also by the vote of two-thirds of each
House, for any cause which the House do not think a sufficient cause of
impeachment; but in the Federal Government there is no method provided
for removing them for the most scandalous indiscretions or incapacity,
as even when they may unfortunately be under mental derangement, except
by impeachment, which is inapplicable to official crimes, and conducted
with tedious forms. The power of impeaching being the only shield
provided by the Government for the protection of the citizens from
judicial oppression, and this House being the only constitutional organ
for obtaining information of official excesses, and bringing forward
articles of impeachment, ought not to bind up their own hands from doing
their duty, and this they will do if they reject the resolution now on
the table.
But while the gentlemen consider the character of these judges so sacred
that their conduct cannot be inquired into, notwithstanding such proofs
of want of confidence in them, and that as a gentleman near me from South
Carolina (Mr. LOWNDES) has said that he is afraid of impeachment, and
grounds his fears on the incapacity or the unfitness of the members of
this House, or because the members of this House may abuse the power;
Mr. F. asked, were not the members of this House selected and qualified
for the discharge of this necessary duty? Were they not appointed by a
respectable authority as the judges? Were they not under a solemn oath
of office for the faithful discharge of this as well as every part of
their high trust? And were they not protected by special privileges and
protection during the discharge of their trust equally with the judges,
and their stations as respectable as the judges’? They are not only
protected from civil actions, but are not subjected to impeachment for
misbehavior in office as the judges are. They are, in their official
capacity, subjected only to the censure of public opinion. If this is
true, it is improper, it is impolitic, for the members of this House to
degrade their own character: it amounts to saying they are not capable
of discharging the trust they are solemnly bound to discharge, and
ought not to have been invested with. He knew, however, that this was
only introduced as an excuse for unwillingness. But the same gentleman
adds, as a reason for opposing the resolution, that he is not acquainted
with the history of the business. That is probably the case with him
and others, especially such as had not a seat in the last session of
Congress, or who resided at a great distance from the scene alluded to in
the resolution. Admitting this to be true, the best and the only regular
way to become acquainted with the history of the case, is to carry the
resolution into effect--to have a committee appointed with such power as
would enable them to procure such information as that gentleman and every
other member could depend on. The gentleman’s objection, in fact, is one
of the strongest arguments in favor of the resolution. The gentleman
from South Carolina has, however, offered one other objection to the
resolution, which merits some notice. He has said that if a committee is
appointed for the object proposed by the resolution, men of character and
talents will not accept of appointments in the Judiciary. The solidity
of this objection will be best examined by the test of observation and
experience. It has been already mentioned that several States have
appointed their supreme judges for short periods, and that others have
vested the Legislature with the power of removing judges from office
without impeachment, merely on their own opinion. Can the gentleman
from South Carolina say--can any member on this floor, where all the
States are represented, say--that these States are deficient in judges
of respectability and talents? They cannot say so--there is no such
complaint. The Judiciary of New Jersey, where the judges are chosen but
for seven years, is as respectable, and the application of her laws as
well brought home to the security and happiness of her citizens as they
are in the States where judges are appointed for life. The same may be
asserted with confidence of the State of Pennsylvania before the revision
of her constitution, as they are since. There is this difference,
however: where they have been appointed for limited periods there have
been no impeachments or removals, and generally, if not always, the
judges were reappointed, and justice was well administered; but since
they have been appointed for good behavior, there have, at least in
Pennsylvania, been both, and more complaints of inattention, expense, and
delays, in the administration of justice than had been formerly. Many
of the judges, however, are very respectable, and enjoy a high degree
of confidence, but not more confidence than they did before the change
of the constitution. There has been no attempt to remove or impeach the
judges of the Supreme Court of that State.
To inquire into the conduct of the judges when confidence is evidently
wanting, is the only true way to secure the respectability of the
Judiciary. If that necessary confidence is withdrawn without cause,
an official inquiry will restore confidence and the usefulness of the
judges. This observation is supported by precedent and parliamentary
usage. In that country from which precedents are so frequently sought,
one precedent offers itself to recollection. In the year 1730, a
committee of the British House of Commons was appointed to examine the
jails. In the course of examination, the committee discovered that
Sir Robert Eyres, Chief Justice of the Common Pleas, a judge of very
respectable character, was suspected, not of tyranny on the bench, or
of putting any man’s life in jeopardy, but of having held an improper
correspondence with a person confined for crime or misdemeanor, and this
suspicion chiefly supported by anonymous letters. A committee of the
House of Commons were appointed to make inquiry, and it was found, to the
satisfaction of the committee and of the people, that the allegations on
which the suspicion was founded were false, and the judge’s character was
vindicated and restored.
Mr. F. said this precedent applied well to the present case. If the
judges mentioned in the resolution had done their duty, their characters
would be vindicated by the inquiry, and the public confidence in their
integrity restored; if they were guilty, and not entitled to confidence,
they ought to be removed from office, and neither the one nor the other
could be done unless the inquiry proposed was authorized.
He said that the inquiry was necessary to secure the purity, honor,
and usefulness of the Judiciary Department. If that House refused
or neglected to exert the powers vested therein for securing public
confidence in the Judiciary, unprincipled men would find means of
recommending themselves to appointments, and would vitiate the streams
where justice is expected to flow, and the citizens would be oppressed
without the means or hopes of redress, and would feel the effects of
tyrannical power in the administration of a government which, in its
other departments, was the greatest and best of any in the world. Let
proper inquiries be made where they are necessary; let the character of
judges unjustly charged be vindicated, and the vicious and unworthy be
removed, and improper characters will cease to intrude themselves; their
friends will not dare to recommend, and Congress will have confidence
that the laws which they pass will be applied agreeably to their genuine
principles, to the protection and ease of the citizens; if we do not
provide for this, we had better cease to make laws.
If virtuous men are appointed and the vicious discouraged, Congress
may, from particular circumstances, be called on to make inquiries,
but very rarely indeed to be employed in impeachments, (no men of
real virtue and talents would refuse a seat on the bench for fear of
inquiry or impeachment.) He said that the judges of the Supreme Court
in the State he had the honor of representing, though they differed in
political opinions, administered justice with such purity and diligence,
that though some of them had been long in office, they enjoyed the
confidence of the citizens, were in no danger of impeachment or removal
by vote, and he believed would not shrink from inquiry if necessary.
The more extensive the confidence of the citizens that was reposed in
the Judiciary, the easier it would be to supply vacancies with men of
character and talents. He said that among several other observations
which occurred to his mind, with offering which he would not now detain
the House, he had once thought of stating other charges against the
official conduct of these judges, of which he had been well informed, but
on due reflection he declined mentioning them, and thought it most for
the public good to insist on the appointment demanded by a member on the
responsibility of his own official character, and as a matter of right,
and would do nothing that would impair the weight of the precedent that
he hoped would be set by agreeing to the resolution as it stood.
Mr. F. said that having so long engaged the attention of the House he
would conclude by observing, that as the case now stood it is proper for
all the members to vote for the resolution; those that believed as he
did, that there was a want of necessary confidence in those judges, and
that this want of confidence was occasioned by their unauthorized and
oppressive conduct, were obliged in conscience to vote for the inquiry;
and every member who believed the judges to have done their duty, and
that the public confidence is withdrawn from them without cause, are
bound in duty to vote for the resolution, in order that the judges may
have an opportunity to vindicate their character, that confidence in them
being restored they may become useful to the public; therefore, in every
light he could view it, he was convinced it was his duty to vote for the
resolution, and would act accordingly.
Mr. JACKSON.--As, Mr. Speaker, this subject is novel in its nature,
and may be important in its consequences, I presume there exists a
disposition to hear the reasoning which any gentleman may be disposed to
offer upon it. It is with this view that I rise to express my opinion
in favor of creating a committee of inquiry. I consider this House as
the grand inquest of the nation, whose duty it is to inquire, on a
proper representation, into the conduct of every official character
under the Government. Like a grand jury, we ought, in my opinion, at the
instance of any member, to send for all persons possessed of information
calculated to throw light upon the conduct of any individual inculpated.
A contrary doctrine would lead to the most unfortunate consequences.
It would lead to this, that a minority would never be able to inquire
into the conduct of a State offender, unless such inquiry were favored
by the majority. As it is now contended that the inquiry is not a
matter of right which any member may demand, but a matter of favor, to
be granted according to the pleasure of the majority, it may be said
that, if a majority favor an individual, he will always escape without
an impeachment. But I believe otherwise; and that the Senate, like a
virtuous judge, will not suffer an atom of prejudice or partiality to
fall into the scales of justice.
But, say gentlemen, though it may be the duty of the House to impeach
an officer, it is necessary that facts, warranting such an impeachment,
should be first presented. This is not the course pursued in cases where
a grand jury is called upon to act. If a murder is committed, it is their
duty to inquire, and diligently inquire, who is guilty of the act, and to
send for all persons capable of giving information respecting it. Such is
the practice. If it shall be required to furnish facts, as is urged by
gentlemen, the consequence will be that offences of the highest nature
will be committed with impunity. It has been observed that it is odious
to undertake the task of a public informer. But what the constitution
and laws make our duty, so far from being odious, is honorable; because
we thereby discharge a duty imposed upon us by our oaths, and because we
show ourselves unawed by the vicious conduct of bad men. If the character
of a public informer be odious, are we to expect that private individuals
will come forward with affidavits? In such a case, to say the least of
it, the duty would be of an unpleasant nature.
We have, in the course of this debate, been frequently called upon
for precedents, and been told, that, when found, they ought to
be adhered to. In a country from which we are accustomed to draw
precedents--England--common report has been considered as a sufficient
authority for similar inquiries. We do not, however, ask for an inquiry
in this case on common report, but on the declaration of a member of
this House, made in his place. Suppose there was no such declaration,
has not a common report, from Maine to Georgia, condemned the conduct
of the judge in the case of Fries and others, at Philadelphia, in the
case of a grand jury in Delaware, whom he directed to inquire for
seditious practices, and in the case of Callender, in Virginia? Has
not the general sentiment of the country charged him with having, in
these cases, abused his powers as a judge by tyrannizing over those who
were brought before him? If we possess the right to inquire, on common
report, surely we ought to institute this inquiry on the prevalence of
so general a sentiment. To such an inquiry I would unhesitatingly agree,
if the character of the President were implicated, the opinion of the
gentleman from Vermont to the contrary notwithstanding. I would likewise
agree to make the same inquiry in any other case; because the inquiry
would redound to the honor of the individual implicated, if innocent; and
because, if guilty, he ought to be punished.
I am sorry my friend from Pennsylvania stated any facts, as I do not
consider it necessary that the House should be acquainted with any facts
to make this inquiry; and because I think the facts, stated as grounds
of impeachment, are not such as will warrant an impeachment. I have
always understood that it was the right of a judge to expound the law,
and I have known frequent instances where the court have refused the
counsel the liberty of discussing the law on points on which they have
made up their minds. While I am free to declare that the conduct of the
court in the trial of Fries is not, in my opinion, such as to require
an impeachment, yet I am in favor of instituting the inquiry. But, say
gentlemen, by the passage of this resolution, we shall censure the judge.
I believe not. If I believed so, I would first require testimony; for I
hold it a good principle, that no man ought to be condemned until he has
been heard. In my opinion, this resolution will have no such tendency;
as, if the judge has not been guilty of misconduct, the inquiry will
redound to his honor, and as it is the duty of a virtuous man to demand
an inquiry whenever charged with an offence.
Gentlemen, in opposition to this measure, say they wish to guard against
suspicion. But suspicion has long since gone forth; has been heard and
re-echoed from every part of the Union; and the only way of defeating it,
if ill-founded, is to institute an inquiry, and if the character of the
judge be innocent, to pronounce it so. I am surprised to find gentlemen,
who profess a friendship for the character of one of the persons
implicated, opposed to this inquiry, when they believe him innocent.
I should suppose it their peculiar duty to call for the inquiry, that
the accused might have an opportunity of proving to the world that his
character has been assailed without cause.
Mr. R. GRISWOLD.--After what has passed on this floor, there can be
no doubt that the gentlemen whose characters are implicated by this
resolution will ardently desire an investigation of their conduct; and
if, on this floor, we were merely to consult our own wishes, we should
unanimously agree on an investigation. But this is not our duty; our duty
is to take on this, as well as on all other occasions, a correct course;
to take those steps only which are warranted. It is because I doubt,
after considerable deliberation, whether this course is warranted, that
I am opposed to it. What, I ask, is the nature of the resolution on the
table? It contains no charges against the judges implicated; it only
proposes to raise a committee to inquire whether their official conduct
has been such as to justify the interposition of the constitutional
power of this House. If a committee of inquiry is raised, what will be
their powers? One thing will certainly follow. They will be clothed with
a power to send for persons, and probably for papers. Is it consistent
with principle to appoint a committee, which, from its nature, must be
secret, with power to ransack the country in the first instance for
accusations against the judges, and then for proofs to support them? Is
this correct? Are gentlemen prepared to say so? to seek for accusations,
and then for proofs to support those accusations, against high officers
of the Government? For one, I believe that this course is not correct. I
believe it to be dangerous. I agree with the gentleman from Vermont, that
it operates in the nature of an inquisition. A committee will be raised
to act in secret, first to find an accusation, and next to prove it. If
there is now any accusation against the judges, let it be made; let it be
made on this floor; and, as the gentleman from New Jersey has observed,
let us ascertain, if true, whether it will be a sufficient ground for
an impeachment. This will be a correct course, and it will be the only
safe course. If, on the contrary, we proceed in the manner proposed, it
will be attended with this consequence: at the commencement of every
session we shall raise a secret committee, to compose an inquisition, to
ascertain whether there are not charges against some public officer, and
to search for proofs to justify them. Is the Government of this country
founded on this principle? I know that this secret course of procedure
is practised by the Spanish Government, and by some others, but I never
thought that it would be the practice of this Government. When a charge
is made against a public officer, it ought to be boldly made. It ought to
be made here, and should be committed to writing. Instead of this being
done, there is no charge made. The resolution contains none. It is merely
calculated to raise a secret committee. Why? Because the gentleman
from Virginia is of opinion that it is proper. Is his opinion, or the
opinion of any other gentleman, to govern this House? Are we brought to
this? I trust this is not the case. I trust that gentlemen will think it
necessary not only to consider his opinion, but to form their own. What
can gentlemen say, if they agree to this resolution? That they voted
to investigate the conduct of two judges. Why? Because the gentleman
from Virginia says it is necessary to investigate. Why investigate?
Because the gentleman demands it. This is the language of that gentleman
yesterday. Because a gentleman of this House gives his opinion of the
course proper to be pursued on this occasion, it does not follow that we
are to be governed by it. We may respect it; but we must respect our own
opinions still more, if we faithfully discharge our duty. I am sensible
that some facts have been mentioned by the gentleman from Pennsylvania,
or rather, that that gentleman has heard a story; but it is mere hearsay.
I ask, also, how this formidable charge has rested to this day? When
and where did the transaction, on which it is founded, happen? In
Philadelphia, and in the winter of the year 1800, when Congress were in
session within twenty rods of the place where the court was held. The
gentleman from Virginia, as well as other members on this floor, were
then in the House. The case being, I believe, the only one in which there
was a charge of treason, excited, in a considerable degree, the attention
of members, many of whom attended the trial. How comes it, then, that
this charge was not then made? If it shall be said the House did not
interfere at that time because the criminal was lying under sentence
of death, it will be recollected that, in 1801, Fries was pardoned.
Why was not the inquiry then made? If it shall be said that it would
have been imprudent to make it on account of the party then in power,
why was it not made in the seventh Congress, when a change of men took
place? How can gentlemen reconcile this great delay with the high regard
they profess for the purity of the streams of justice, and for justice
itself? For such is the respect they entertain for justice, that they
have determined to bring to conviction this unjust and criminal judge.
Gentlemen ought to account for this culpable neglect. It is impossible
that they should have been ignorant of the trial of this man. It was not
a sudden or a hidden thing, done in a corner; it was done in public, in
the face of the Legislature, and yet it has slept to the present day.
Under such circumstances, I submit it to the House, whether much respect
ought to be paid to the hearsay of the gentleman from Pennsylvania. The
very delay, and other circumstances attending this transaction, show
that it is not of the serious nature contended. I therefore think that,
if properly brought before the House, and suffered to rest upon proof,
it would constitute no ground for impeachment. As to the proposed
form of proceeding, if we examine precedents, we shall find that it
is not warranted by them. None mentioned compare with the case under
consideration. The precedent in the case of Lord Bolingbroke does not
compare with that. In that case the House of Commons raised a secret
committee to examine the negotiations made for a peace. The committee
was not raised to impeach Lord Bolingbroke, but to investigate the
negotiations of the Ministry; and on the disclosure of facts, which took
place on that occasion, the impeachment was grounded. Such, also, was
the case in the instance of the Western expedition. The House appointed
a committee vested with general powers to inquire into the causes of its
failure, without particular reference to the conduct of any person.
If we turn our attention to British precedents, we shall find that
a committee has never failed to investigate the official conduct of
any person contemplated to be impeached. In the case of Hastings, Mr.
Burke came forward and moved an impeachment directly. In all cases this
course has been pursued in the British House of Commons. So far as we
have precedents in this country, a similar course has been pursued. In
the instance of Governor Blount, the Executive transmitted documents
to this House, which contained, as it was supposed, evidence of his
guilt; they were referred to a committee to examine them, and also to
determine whether it was proper to print them. The committee reported
that, in their opinion, they contained evidence of his guilt, and he
was impeached. In the case of Judge Pickering, the same course has
been pursued. The Executive transmitted documents to the House which
contained, as it was supposed, proofs of misconduct, and the House
proceeded to an impeachment. These precedents confirm the principle of
those drawn from the practice of the British House of Commons. What
course is now proposed? Without any charge against the judges, without
any man saying they are guilty of any misconduct, we are about to appoint
a secret committee, to determine whether any charges can be made, and
whether any proofs to support them can be found. Although I am willing
that the conduct of these gentlemen shall be investigated, for I am sure
they must desire it, and although I have no objection to impeach them,
if gentlemen wish it, and exhibit proper proofs on which to ground it,
yet I cannot consent to pursue a course so improper as that now proposed.
For this reason I am against the resolution, not because I am hostile to
an investigation, but because I cannot consent to the appointment of a
secret committee to search, in the first instance, for an accusation, and
to look for proofs to justify it.
Mr. FINDLAY rose to explain. He said it was not the object of the House,
in their investigation of the causes of the failure of the Western
expedition, to make new arrangements, but to inquire into the conduct of
certain officers who had directed it, viz: the Secretary of War, the
Commander-in-chief, and the Commissary.
Mr. NICHOLSON said, he happened not to be in the House yesterday at the
moment when the resolution under consideration was introduced; and when
he entered he found the gentleman from Connecticut (Mr. R. GRISWOLD) on
the floor, who concluded his remarks by moving a postponement. Mr. N. did
not think it then correct to offer remarks upon the main question, but as
the resolution itself was now under consideration, and the subject of no
common nature, he could not think of passing a silent vote upon it.
When he rose to-day, for a few moments, on the motion to amend, by
inserting the name of Judge Peters, he had then declared, and he now
begged leave to repeat it, that whenever any member of the House should
rise in his place and state that any officer of the Government had been
guilty of official misconduct, he had no hesitation in saying, that he
would consent to an inquiry. He cared not how exalted his station, or how
far he was raised above the rest of the community; the very circumstance
of his superior elevation would prove an additional incitement. Such, he
said, was the nature of the Government, and so important the duty in this
respect devolved upon the House of Representatives, that the conduct of
the Chief Magistrate himself, as far as his vote could effect it, should
be subjected to an inquiry whenever it was demanded by a member. The
greater responsibility, the more easy and more simple should be the means
of investigation. Were he, indeed, the friend, personal or political, of
the officer charged, and he believed that impeachment would be the result
of inquiry, it was possible that his feelings as a man might induce
him to forget his duty as a Representative, and urge him to resist the
inquiry; but, were he convinced of his innocence, he would do all in his
power to promote it, in order that he might stand justified to the nation
and to the world.
Upon the present occasion, he begged that he might not be understood to
say that the offence with which these judges were charged, was such as
would warrant an impeachment. But, while he meant not to commit himself
on a question of such high moment, he could not avoid expressing his
astonishment that the conduct stated should not only be defended upon
the floor of the House, but entirely approved; that gentlemen should
venture to declare that the court acted strictly in the line of their
duty, in refusing to hear counsel on a point of law which involved the
guilt or the innocence of the prisoner. A man was charged with the
highest offence against the Government, and, if guilty, was subject to
the severest and most ignominious punishment recognized by our laws. High
treason was the crime, and death the penalty. The constitution declared
that treason against the United States should consist only in levying
war against them, or in adhering to their enemies, giving them aid and
comfort. The framers of the constitution intended to be as precise as
possible in their definition of treason; they were anxious that no room
should be left for doubt afterwards. They had seen to what an infinite
variety of objects the crime of treason had been extended in England,
and wisely confined it here to the only two offences which could be said
to strike at the existence of the Government. The laws of the United
States had declared that resistance to the execution of a law should only
be considered as sedition, and had provided the punishment of fine and
imprisonment. Fries was charged with resisting the execution of a law,
and this offence the court determined to be treason, without hearing his
counsel, and refused to permit them to address the jury on the subject,
although the jury were the judges as well of the law as the fact. A
resistance to the execution of a law, they construed to be treason, in
the face of the act of Congress, which declared it to be a misdemeanor
only, punishable with fine and imprisonment. These constructive treasons,
he said, had been reprobated by the wise and good in all ages, and at a
very early period in the history of English jurisprudence had received
the pointed disapprobation of the Parliament. He adverted to what he
called a wise and humane provision in the statute of Edward III., by
which the judges were prohibited from declaring any thing to be treason
not so expressly defined by the letter of the statute. That the court had
given such an opinion, was not now, however, the point of charge against
them; that they extended the doctrine of treason beyond both the letter
and spirit of the constitution, was not now the foundation of the present
motion. The accusation was that, in a case involving the life or death of
a freeman, the party was condemned without a hearing; that he was denied
the assistance of counsel, which was secured to him by the constitution
of his country; that the right of the jury to decide both the law and the
fact was refused; for it amounted to a refusal when the court would not
permit the jury to be assisted by the arguments of counsel. He asked if
gentlemen would consider it correct in a court, upon an indictment for
murder, to prohibit the prisoner’s counsel from contending before the
jury, that the offence charged amounted to manslaughter only? Surely not.
The question, in the case of Fries was, whether the act of which he had
been guilty amounted to treason, or to a misdemeanor? and this the court
refused to suffer the jury to have an argument upon. He declared that,
in all criminal prosecutions, the jury had a clear, undoubted right to
decide, as well the law as the fact; they were not bound by the direction
of the court; and that, in capital cases, it was a right which they ought
always to exercise. But, in Fries’s case, the law was not permitted to
be brought into the view of the jury by his counsel; the court denied
to the prisoner the assistance of counsel, which was secured to him by
the constitution, and he was condemned to an ignominious death, which he
must have suffered but for the subsequent interference of the Executive.
Mr. N. said, he had thought proper to make these remarks in answer to
those gentlemen who had undertaken to pronounce the conduct of the court
to be strictly correct. Although he did not mean to commit himself by
declaring that this afforded sufficient ground for impeachment, yet he
could not avoid saying, that the refusal to hear counsel in defence of
the prisoner, did not meet his approbation.
The gentleman from Connecticut had doubted whether the present proceeding
was conformable to principle. He thought that we ought to have the proof
before we take any steps to procure it. Mr. N. begged leave to ask
how proof was to be procured before inquiry was made? In what manner
information was to be obtained before it was sought for? If a member
had stated upon oath that a judge had been guilty of improper conduct,
which would warrant an impeachment, the motion would not be, in the first
instance, to inquire, but to impeach. If information was necessary, how
was it to be procured? By sitting here, and writing for depositions to be
sent in? Surely not. If a person was in the lobby, acquainted with all
the facts, how were they to be communicated to the House? Was he to come
to the bar, and offer a voluntary affidavit, or would it be correct to
introduce him without any previous proceeding? In that case, would it not
be necessary to declare, by a prior resolution, that we would commence an
inquiry before testimony could be offered at the bar? If a member should
state that a witness was at hand who could prove official misconduct
in a judge, the correct course would be to introduce a resolution,
declaring that the House would inquire, and it could not be resisted.
What, he asked, was the proposed course? Instead of making the inquiry
in the House, it was requested that it might be made by a committee.
Instead of using our power to bring witnesses before us, it is proposed
to authorize a committee to examine them. This would be more convenient
and more proper. To bring them before the House would be attended with
inconvenience, and unnecessary delay. He could not tell what the mode of
proceeding before the House of Representatives would be, but, generally,
he believed, it was the practice for a member to propound the question to
the Speaker; the Speaker then to propound it to the witness; the answer
to be made to the Speaker, and by him reverberated back again to the
House. He asked, if the House would consent to this? If they would agree
to a course of proceedings so tedious, so procrastinating, so evidently
embarrassing? And yet this must be the course, unless that proposed was
adopted.
It was said by a gentleman from Connecticut, (Mr. R. GRISWOLD,) that
we were about to appoint a committee to ransack the country for an
accusation, and afterwards to search for proof to support it. He
complains that no accusation is made. Mr. N. averred that an accusation
was made; it was made during the last session, and again repeated during
the present. He asked, if it was no charge to declare that a judge had
condemned a man to the most ignominious death, without a hearing; without
allowing him those benefits which he claimed under the constitution? Was
it a trivial circumstance for a member of this House to declare that a
freeman had been indicted for a high capital offence; that he appeared
at the bar and pleaded not guilty; that his counsel were ready to prove
the truth of the plea, but that the presiding judge had refused to hear
them? If this was not a charge, and a charge, too, of a most solemn
nature, he did not understand the meaning of the words. It was brought
forward as boldly as the gentleman from Connecticut could wish, and the
only question now was, in what manner shall we inquire into the truth of
it? Shall we appoint a committee to make the inquiry by calling witnesses
before them, or shall we dismiss it without investigation? Shall we give
it the go-by, and suffer the character of the judges to rest under an
imputation so heavy? Shall we proclaim our own dishonor, by publishing
abroad that a heavy charge had been made, in the face of this House,
against one of the highest judicial officers of the Government, and that
we were too pusillanimous to notice it?
What the gentleman meant by comparing the proposed committee to the
Spanish Inquisition, Mr. N. did not really understand. Did the gentleman
wish to make a false impression upon the public mind? Was he anxious
to cast an odium upon the proceeding by calling it an inquisitorial
committee, and affecting to believe that it was to be clothed with the
powers of the Holy Inquisition? The Inquisition had the power to seize
the person of the party, to deny him all access to his friends, to
confine him in a cell, and refuse him all assistance whatever; to stretch
him on the wheel, and rack and torture him into confession. Does the
gentleman wish to induce a belief that this committee is to be clothed
with the same powers? All committees appointed to inquire, might, to be
sure, be called Inquisitorial, because they were to make inquiry, but the
epithet of Spanish Inquisition was intended to convey an idea totally
incorrect.
The gentleman had asked why this charge had been suffered to rest so
long? The facts upon which it was made were said to have taken place in
1800. Mr. N. thought it would be fair to reply to the gentleman that,
possibly, he himself had, in some measure, accounted for the delay; the
proper time had not before arrived. But if the act upon which the charge
was grounded was criminal at that day, was it less so now? If Justice had
slept so long, did it follow that she was dead? He hoped and trusted not.
Though she had lain dormant till she was almost trampled to death, she
was again roused to her accustomed vigilance, would pursue her victims,
and drag them to punishment. The day of retribution, he hoped, was at
hand.
The gentleman from Connecticut had declared that the proposed course
was not warranted by precedent. He had noticed, but had not explained
away, the precedents introduced by the gentleman from Pennsylvania,
(Mr. FINDLAY.) His own precedent, derived from the impeachment of Mr.
Hastings, instead of being in his favor, was directly against him.
In that case it was not pretended that the proof was before the House
of Commons. Mr. Burke had derived his information from certain papers
relative to Indian affairs, which some years before had been produced and
referred to a select committee. In the year 1786, Mr. Burke rose in his
place, not as a member of that committee, and charged Warren Hastings
with high crimes and misdemeanors. About the same time he presented a
written paper containing a specification of these charges. But this was
not the impeachment. The written paper stated that as Governor General
of Bengal he had disobeyed the instructions of the court of directors;
that he had acknowledged himself perfectly acquainted with their wishes,
but instead of obeying, had used his utmost endeavors to defeat them; and
much more of an important nature. This he moved might be referred to a
Committee of the whole House, in order that an inquiry might be made; and
there was not a single dissenting voice. He did not adduce the proofs in
the first instance, but stated his opinions that Mr. Hastings’s conduct
had been criminal, and demanded an inquiry. The Commons of England did
not hesitate--they instantly resolved to inquire. No one was heard to
declare that there was no charge, because there was no proof. Witnesses
were brought to the bar and there examined by a Committee of the Whole,
in support of the charges; nor was there a motion to impeach until the
testimony was gone through. On the contrary, the facts proved were
reported by the Committee of the Whole, who likewise expressed an opinion
that Warren Hastings had been guilty of high crimes and misdemeanors,
and ought to be impeached. The impeachment therefore was not upon the
motion of Mr. Burke, but upon the report of a committee, who under the
instruction of the House had made an inquiry.
What then, Mr. N. asked, was the course now proposed? His friend from
Virginia had called the attention of the House to certain alleged
misconduct of a judge, which had been stated by a member in his place
during the last session. That statement had again been repeated in the
House yesterday, not in writing, indeed, but in language so clear and
in terms so unequivocal that none were so stupid as not to understand
it. Like Mr. Burke, he asked that a committee should be appointed to
inquire into the truth of the charge. The House of Commons had referred
the subject before them to a Committee of the Whole, and the House of
Representatives were moved to refer the subject before them to a select
committee. A select committee was proposed, because it would be more
convenient and more expeditious. If the subject might with propriety be
referred to a Committee of the Whole, with equal propriety might it be
referred to a select committee.
He had noticed this precedent, not because he thought it necessary
to cross the Atlantic for authorities, but because the gentleman had
introduced it as favoring his own doctrines. If there was already no
precedent, in his opinion the House ought to make one; but he believed
their own journals would furnish them with one. At the first session
of the seventh Congress, in a very few days after the House met, Mr.
N. said he had risen in his place, and stated that he had seen in the
public prints, during the preceding summer, charges of a serious nature
against an individual who had filled one of the highest stations under
the Government, that he had misapplied considerable sums of public money,
and was a defaulter to a very large amount. Upon this vague rumor, he had
moved that the accounts of the former Secretary of State should be laid
before the House. No gentleman then declared that it was necessary to
have proof before an inquiry took place. No one dreamt that information
as to facts was to be had, before it was sought for. Some indeed had
asked how far the motion was to extend; whether it was to embrace all the
other Secretaries of State? Others desired that the accounts from all the
departments should be called for, and finally it was determined to let
the resolution lie for a short time. In a few days after, on the 14th of
December, he modified the resolution, in conformity with the wishes of
several gentlemen, and it passed directing that “a committee should be
appointed to inquire and report, whether moneys drawn from the Treasury
had been faithfully applied to the objects for which they had been
appropriated, and whether they had been regularly accounted for,” &c. A
precedent more in point he thought could not be desired. The inquiry was
produced, not upon proof, not even upon the suggestion of a member, but
because a report as to the misapplication of public money had circulated
through the public prints of the day. He might be told perhaps that this
was an inquiry of a general nature. But general as it might be, it was
directed at the conduct of individuals, and under other circumstances
might have furnished materials for an impeachment. The gentleman from
Connecticut was a member of that committee, and Mr. N. asked him if he
would pretend to say that it was a secret committee, as he had called
that now asked for? Or was this only another attempt to impose upon the
public?
Another precedent, he thought, might be furnished from the Journal, but
he was unwilling to refer to it.
It had been said, too, that impeachments would be cheap if they were to
be made upon the suggestion of a member. It appeared to him that the
motion to inquire had been constantly mistaken for a motion to impeach.
Did gentlemen suppose that an impeachment must necessarily follow an
inquiry? It would seem as if they entertained a poor opinion of those
whose conduct was the subject of discussion. But they ought to recollect
that the impeachment could not be the act of any individual, nor of the
committee, but of the House; and this, too, after all the facts were
collected and presented, with the evidence to support them. If this
mode was not to be adopted, he did not know any other manner in which
an impeachment could be instituted, unless where the President thought
the peace of the country or the revenue were endangered, and gave
the information himself, as in the case of Governor Blount and Judge
Pickering. Nor did he think this could affect the independency of judges,
unless they were to be made independent of the laws, the constitution,
and the people.
Had it not been for the debate which had taken place on this subject, he
should have imagined that the friends to the judge would have been the
first to promote the inquiry after it was moved for. If he was innocent,
the inquiry ought to be wished for: after passing through the ordeal,
he would come out like pure gold from the crucible. If guilty, no man
ought to feel a disposition to screen him from punishment. Mr. N. could
not avoid on this occasion alluding to the recent conduct of a judge in
a neighboring State, upon whose character an imputation of the blackest
nature had been thrown by a miscreant. That judge, conscious of his own
rectitude, and disdaining to shelter himself from inquiry, demanded
an investigation of the charge, and the consequence was an entire and
honorable acquittal.
Mr. ELLIOT.--When, in the course of a late debate in this House, it was
observed that a member had advanced an anti-republican sentiment, the
supposed imputation was repelled by the remark, that the gentleman to
whom allusion had been made, had passed a political ordeal which few
had experienced, and which ought to place his character as a republican
above the reach of suspicion. I have myself suffered an ordeal of that
description, under circumstances of gloom and depression which have
fallen to the lot of but few young men of this country; and I am far
from being confident that one ordeal only will fill up the measure of
my humble fortune. A more anti-republican resolution than the one upon
your table, sir, I think I never saw. Reflection has confirmed me in
the opinion which I expressed yesterday, that it is unprecedented,
unparliamentary, and tends to the assumption, on the part of this House,
of a censorial and inquisitorial power over the Judiciary, unwarranted
by the constitution. The intention and object of the mover, however,
must have been extremely different; the motive is pure and the object
meritorious; but that honorable gentleman, with all his talents and
discernment, has, in my opinion, fallen into an error. I believe it a
sound principle, that no official measures should be taken to censure or
criminate the conduct of a public officer, until facts shall be stated
which amount to a specific and definite charge of misconduct. In the
present instance we have no written allegations, and what is the amount
of the verbal information with which we are furnished? A gentleman from
Pennsylvania has stated in his place that _he has heard_ that some one of
the judges, whose name appears in the resolution, was guilty of improper
and oppressive conduct, in the exercise of his judicial functions, on a
trial for treason some years since. And a gentleman from Virginia has
stated that he has received information which induces him to believe that
the inquiry he demands will lead to an impeachment. Is it our duty to
act upon the vague rumors of common fame, or the opinions of individual
members?
The resolution under consideration has been materially altered this
morning, and I gave my vote for the alteration, because I believed that
the misconduct of a court ought not to be attributed to a single judge.
I feel it my duty, Mr. Speaker, to remark, that the information which
is possessed by the members of this House, respecting the conduct of
those judges, is extremely contradictory. No gentleman has told us that
he possesses personal knowledge of the misconduct imputed to those
officers; and I possess information on the subject, derived soon after
the transaction, from a source which I considered as authentic, and which
produced so deep an impression upon my mind, that I should scarcely
abandon my belief of its authenticity, even from the general recollection
of persons who were present at the scene. I understand that the judges
did nothing more or less than decide a legal question in a legal manner.
They did not interdict the counsel for the prisoner from examining
a question of law, but they restricted them to what they considered
as their legal and constitutional limits. They told them that the
constitution of our country had clearly and explicitly defined the crime
of treason, and confined them to the plain field of the constitution,
inhibiting them from a resort to British authorities to prove that to be
treason which the constitution of our country had not made treason, or to
prove that what our constitution had made treason, was not recognized as
such by foreign precedents. This statement may be incorrect, and, if it
be correct, the conduct of the judges may have been improper and severe,
but it cannot justify an impeachment. And if the court went farther,
interrupted the counsel for the prisoner, informed them that it was the
province of the court to determine points of law, declared that their
opinion was fixed upon those points, and even forbade the counsel to
prolong their arguments upon them, it might still be questionable whether
the conduct of the court rendered its members liable to impeachment. A
venerable gentleman from Pennsylvania, (Mr. FINDLAY,) who has long been
in the service of his country, has been incorrect in stating that I had
observed that I would never go into the inquiry without evidence; that
incorrectness must have been unintentional; if I used an expression of
that description, it was a _lapsus linguæ_: but I am confident that I
said, and I am certain that I intended to say, that I thought it improper
to institute the inquiry until some fact or facts should be stated as a
ground of accusation. A gentleman from Virginia (Mr. JACKSON) has told us
that common fame is sufficient ground for impeachment in Great Britain.
That gentleman has not adduced his authorities for this proposition, and,
had he adduced them, I am confident they would not have answered his
purpose, when contemplated in all their bearings, when examined with all
their qualifications. The same gentleman also observed, if I understood
him correctly, that were he satisfied that the conduct of the judges, in
the case alluded to, was legal and correct, he would still vote for the
inquiry. To me this declaration appears extraordinary. Why vote for an
inquiry when satisfied that no criminality existed?
A gentleman from Pennsylvania, (Mr. SMILIE,) who contends that there is
no necessity for precedent in the present instance, as we are competent
to form precedents for ourselves, has yet thought proper to explore
the books for precedents, and has presented us with the result of his
labors. To guide our conduct on the present occasion, we are referred
to the case of the Earl of Strafford, over whose tomb genius and virtue
love to mourn, and will mourn in future ages! It cannot be possible
that that gentleman wishes to recommend for our imitation that flagrant
perversion of every principle of law and justice, that cruel catastrophe!
A gloomy and terrible precedent, one of the most dark and disgraceful
in the British annals, and utterly unsusceptible of application to
the principles of a Republican form of Government. The gentleman from
Maryland, (Mr. NICHOLSON,) to whom I listened with peculiar pleasure, and
who has certainly displayed ingenuity, has been equally unfortunate in
his selection of precedents, and in his application of them to the case
under consideration. He has cited cases, which, by his own statement,
militate against the principles he assumes. We are first presented
with the celebrated case of Warren Hastings. In that case, a member
rose in his place, and, after accusing Hastings of high crimes and
misdemeanors, exhibited specific charges of malconduct, in consequence
of which an inquiry was instituted. Here is a solid basis, and the very
basis which is wanting on the present occasion, upon which to erect
the superstructure of impeachment. That gentleman has also mentioned
a resolution introduced by himself in a former Congress, which was
expressed in general terms, and directed to general objects, and of
course was perfectly dissimilar to the present one.
Allusions have repeatedly been made to a remark of mine in the debate
of yesterday, that this House is the grand inquest of the nation. It
has been asked, if a grand jury were informed that a murder has been
committed, would they not send for evidence to ascertain the fact? We
are the grand inquest of the nation, and our practice ought, in many
respects, to be analogous to that of grand juries; but in becoming
that inquest, we do not entirely lose our deliberative and legislative
character. I believe it would be descending from the dignity of our
station, to listen to the murmurs of general rumor, and seek for guilt.
I have heard that one of the judges whom we are called upon to censure,
when in the exercise of his judicial functions, inquired of a jury, “Is
there no sedition here? Are there no seditious newspapers within your
jurisdiction?” I am ignorant whether this report be or be not founded on
fact. But if it be true, let me ask, shall we not pursue a similar course
by adopting the present resolution? Shall we not authorize a committee
to inquire, Is there no judicial guilt abroad in our land? Is there no
latent inquiry in some unexplored corner of our country? A grand jury
is sworn diligently to inquire, and true presentment make, of all such
offences against the laws of the land, as shall come to their knowledge.
Have we taken such an oath? Are we under such obligations? And are we not
about to attach to ourselves that character which gentlemen tell us is so
odious, the character of common informers? I am under no fears that the
stream of justice, which ought to be so pure, will become turbid, from
a want of accusers, when our judges shall be guilty of crimes. When our
courts shall become corrupt and despotic, patriotic motives will induce
our citizens to bring forward accusations. I am also sensible of the
propriety and force of the observation of the gentleman from Connecticut,
(Mr. R. GRISWOLD,) that the trial in question was a transaction of great
publicity, and all its circumstances must have been known to thousands of
our citizens. This induces me to believe that the conduct of the court
was not so oppressive and despotic as is now represented. Why has this
awful charge slumbered so long?
One or two remarks upon the allusions that have been made to my
observation, that we are about to assume censorial and inquisitorial
powers, and I will dismiss the subject. What is the language of the
resolution? Without the allegation of a single fact, it constitutes
a committee to inquire whether the judges have not so acted in their
official capacity as to render necessary the interposition of the
constitutional powers of this House. The expression is unequivocal;
the allusion to the power of impeachment is perfectly obvious. This is
what is called a _petitio principii_; it takes for granted, at least
in some degree, what remains to be proved, that the conduct of the
judges has been improper and illegal. Else why adopt a language which
implies suspicion and censure? But gentlemen are alarmed at the epithet
inquisitorial, and imagination teems with the horrors of the Spanish
Inquisition. If the creation of this committee be an unauthorized act, if
in creating it we transcend those limits which we ought, by a reasonable
construction of the constitution, to set to our own powers, it instantly
becomes inquisitorial in its nature and in its operation. We must
delegate to it more than general powers. We must authorize it to send for
persons, and probably for papers and records. The proposition is hostile
to republican principles, and, as a republican, I cannot give my vote in
its favor.
Mr. HOLLAND.--When I before addressed the House on this subject, I had no
doubt of the charge being sufficiently explicit to found an inquiry into
the conduct of the judges. My only doubt was whether it was proper to
proceed without affidavit. Since yesterday I have reflected on the course
pursued in similar cases; and I will state to the House the proceedings
adopted in two or three cases in the Legislature of which I was a member.
In the year 1796, a charge was preferred against certain judges of the
State of North Carolina for illegally extending their power. A committee
was appointed to inquire into their conduct, and the result was, that the
judges had exiled certain persons from the State. The proceedings did not
go so far as an impeachment; for the judges wrote an explanatory letter,
which gave satisfaction, and they were acquitted with honor. The other
charge, to which I have alluded, was against the board of army accounts;
that also was referred to a committee. The last case is the most recent.
A suspicion existed that the Secretary of State had been guilty of
misconduct. A letter had been received by the Governor from some citizens
to that effect; in consequence of which, and of other corroborating
circumstances, the Legislature appointed a committee of inquiry, of which
I had the honor to be a member. That committee was empowered to send for
persons and papers. There was no specific charge, but an impeachment was
contemplated, if the officer should appear to be guilty. The Secretary
was brought before the committee, who examined him on oath, and reported
the existence of frauds much more extensive than had been imagined; in
consequence of which the land office was shut up, and the Secretary
notified that articles of impeachment would be exhibited against him.
But the late period of the session not then admitting of a trial, it was
postponed to the next General Assembly. At the succeeding Assembly the
officer resigned, and superseded the necessity of an impeachment. He
was afterwards indicted at common law. These precedents, drawn from the
proceedings of the Legislature of the State which I have the honor to
represent, induce me to think that the course proposed is proper; and I
shall, accordingly, vote for the appointment of a committee of inquiry.
Mr. DENNIS said, he did not rise for the purpose of entering into an
investigation of the merits of the question, but principally for the
purpose of stating, in a few words, what appeared to be the difference
between the friends and the opponents of the resolution. He had never
experienced, on any occasion, a stronger conflict between inclination
and duty than in the present instance. On the one hand, he was confident
that, after the official conduct of the judges had been thus publicly
implicated, it must be desirable to them that an investigation of the
facts charged against them should take place, and it seemed to be a
duty due to those gentlemen, that they should have an opportunity of
being confronted with their accusers. On the other hand, we owe to the
laws and constitution, as well as to those considerations which must
always govern in the establishment of important precedents, a paramount
duty, which appeared in this case irreconcilable with the indulgence of
individual considerations. The true difference between the advocates and
the opponents of the resolution appeared to be this: That the one thought
it a proper procedure to raise an inquisitorial committee, without any
definite or assignable object, and without stating in the resolution any
specific charge. The other did not demand, as it had been supposed, the
production of all the evidence in the outset of the proceeding, which
might be necessary in the ulterior stages of the transaction, nor that
precise and technical specification of the charges which might be proper
in articles of impeachment, but only required that some fact should be
stated, or charge alleged, as the basis on which to erect a committee. He
believed, to create a committee by resolution, with general inquisitorial
powers, without specifying any charge, or stating any reason in the
resolution for the proceeding, was without precedent, and might become an
engine of oppression. In order to satisfy the friends of the resolution
on that, he did not wish to avoid that investigation which might be
founded on proper principles, and which he believed, after what has been
said, is rather courted than avoided by the judges in question. He would
beg leave to read, in his place, the form of a resolution, such as he
supposed ought to be the groundwork of a procedure like this:
“Whereas information hath been given to the House, by one of
its members, that in a certain prosecution for treason, on
the part of the United States, against a certain John Fries,
pending in the circuit court of the United States, in the State
of Pennsylvania, Samuel Chase, one of the associate justices
of the Supreme Court of the United States, and Richard Peters,
district judge for the district of Pennsylvania, by whom the
said circuit court was then holden, did inform the counsel
for the prisoner that, as the court had formed their opinion
upon the point of law, and would direct the jury thereupon,
the counsel for the prisoner must confine themselves to the
question of the fact only. And whereas, it is represented that,
in consequence of such determination of the court, the counsel
did refuse to address the jury on the question of fact, and
the said John Fries was found guilty of treason, and sentenced
by the court to the punishment in such case, by the laws of the
United States, provided, and was pardoned by the President of
the United States.”
He said he read this by way of argument, to show that the present
resolution ought to be rejected, and though he would not offer it
himself, in case the resolution before them should be rejected, yet
he would pledge himself to vote for such a one, if the gentleman from
Virginia or any other member would offer it. The resolution which
has been read, embraces all the facts stated by the gentleman from
Pennsylvania, which contains the only charge that has been exhibited. But
if any gentleman possesses a knowledge of any other facts or charges, let
him specify them, and he would be willing to vote for an extension of the
powers of the committee to them also; for he did not wish to confine the
inquiry to the specific charge stated by the gentleman from Pennsylvania,
if other gentlemen had charges to exhibit, and would state them in the
resolution. If they would specify a charge or charges of a serious
nature, and give us any reason to believe them true, although originating
from hearsay evidence, he would vote for the inquiry proposed; and he
begged that he should be understood as objecting rather on the ground
that no charge had been specified, than on the ground of incompetent
evidence. The vague charges verbally communicated by the gentleman from
Pennsylvania, and none of which are reduced to writing, give no grounds
of procedure; not only because, if true, they constitute no cause for
impeachment, but because they are not specified in the resolution.
The motion was then further amended to read as follows:
_Resolved_, That a committee be appointed to inquire into the
official conduct of Samuel Chase, one of the associate justices
of the Supreme Court of the United States, and of Richard
Peters, district judge of the district of Pennsylvania, and to
report their opinion whether the said Samuel Chase and Richard
Peters, or either of them, have so acted, in their judicial
capacity, as to require the interposition of the constitutional
power of this House.
Mr. SPEAKER stated the question, that the House do agree to the
said motion, as so amended, when an adjournment was called for and
carried--yeas 61, nays 43.
SATURDAY, January 7.
Mr. NICHOLSON, from the committee appointed on the memorial of Alexander
Moultrie, agent for the South Carolina Yazoo Company, and of William
Cowan, agent of the Virginia Yazoo Company, made a report, going
considerably into detail, and concluding with a resolution adverse to the
prayer of the memorialist. Referred to a Committee of the Whole on Monday.
_Official Conduct of Judge Chase._
The House resumed the consideration of the question depending yesterday,
at the time of adjournment, “that the House do agree to the motion of
the fifth instant, as amended by the House, for the appointment of a
committee to inquire into the official conduct of Samuel Chase, one of
the associate justices of the Supreme Court of the United States, and of
Richard Peters, district judge of the district of Pennsylvania.”
Mr. J. RANDOLPH expressed his regret that the attempt which he had
made yesterday to reply to the very personal allusions of a gentleman
from Connecticut, (Mr. GRISWOLD,) whom he was sorry not to see in his
place, had, by the adjournment, proved abortive. Such was his regard
for the opinions of the House, that he should always, when called upon
from a respectable quarter, justify any conduct which he deemed it
proper to pursue in its deliberations. He felt it due to the respect in
which he held the Chair and those around it, to reply to the remarks
of the gentleman from Connecticut, and this consideration alone could
have induced him to offer any thing in addition to what he had already
advanced in favor of the motion. He should otherwise have left the
resolution to its fate. In that fate he did not feel himself personally
implicated. If it should be rejected, he would be satisfied in having
done his duty, and the House, he supposed, would feel equally satisfied
in having discharged theirs. It was asked, where was the mover of this
resolution at the time when the alleged misconduct took place? Did it
not, said the gentleman, pass under their own eyes? Were not their
deliberations held on the very spot? and why had the motion slept until
this day? He hoped he should be permitted to say that it did not pass
under his eyes; although he knew, at the time of the condemnation in
question, he did not become acquainted with the circumstances under
which it took place until long after their occurrence. It was true that
the deliberations of Congress were then held in Philadelphia, the scene
of this alleged iniquity, but, with other members he was employed in
discharging his duties to his constituents, not in witnessing, in any
court, the triumph of his principles. He could not have been so employed.
It would be recollected, that the information given by the gentleman
from Pennsylvania formed the groundwork of his proceedings, and he asked
whether it was more the duty of the mover of the resolution to have
brought it forward than every other member of the House who was a witness
of the statement made by that gentleman? This information, of an official
nature, given by a member in his place, of a transaction in open court,
and which it was the duty of them all to have noticed, had been called
a story related on hearsay; a rumor of an affair which had happened in
a corner; and the House was asked if they would take such evidence as
ground of proceeding, on the _dictum_ of any one member, however great
their confidence in him might be? If he really felt that respect for
the House which the gentleman from Connecticut had professed, he would
not have insulted their understandings by such language. He would not
have stood up, as _amicus curiæ_, to prevent their being precipitated
into absurdity and injustice by an influential member of their body.
That, however, was the station which the gentleman had assumed, and
he hoped the duties of it would be discharged with the fidelity which
they required. After clothing himself with this character, Mr. R. said
he expected to have seen him at his post--he regretted that he did
not see him there, and that his duty did not permit him to withhold
the observations which he was compelled to make. Whilst, however, the
gentleman was engaged in discharging the new and important function
with which he stood self-invested, he seemed cautious of replying to
the masterly statement of his venerable friend from Pennsylvania, and
which he believed had remained unanswered because it was unanswerable.
It must, said Mr. R., be a subject of high gratification to us all,
and I congratulate this House upon it, that age has not yet dimmed the
lustre of those talents which have so long presided in the councils
of this country. And if the time shall come when we are to resign our
understandings, and place ourselves under the direction of an individual,
I hope to be permitted to range myself under the banners of that tried
patriot, and not under those of the gentleman from Connecticut. In the
same spirit with which he challenged the confidence of the House, as a
friend unwilling to see them led into error and absurdity, that gentleman
had endeavored to alarm their pride by representing the motion as a
demand made upon them. It was so. It was (if he might so express it)
a writ of right, not of favor--and as such he demanded it, as such he
urged it. But an objection was taken that no act of misconduct had been
alleged. With his friend from Maryland he would say, that a fact of the
first importance had been adduced, on which he was sorry his friend had
not dwelled longer. It could not receive too much attention. On a trial
for life and death, the jury, who were the constitutional judges both
of the law and fact, were deprived of the right of a discussion of the
point of law, “what constitutes treason?” The rights of the jury and
of the accused were equally invaded. It was conduct not dissimilar to
this, in a case of libel, which drew forth from the English Parliament
the famous declaratory bill of Mr. Fox. Lord Mansfield had laid down the
doctrine that the jury had a right to decide only upon the bare facts
of printing and publishing, and not upon the question of guilt, which
was compounded of the law and the fact. This produced the declaratory
act which passed a strong censure on the practices of courts--since
it did not amend or alter the law, but declared what the law was--and
established the point resisted by the court, that the jury was the judge
both of the fact and of the law. If, then, on a question of criminal
law, where the punishment was only fine and imprisonment, the conduct of
a judge was deemed highly reprehensible in encroaching upon the rights
of the jury, what shall we say of him who usurps those rights in a case
of life and death, in a case of treason? This denial to the prisoner and
the jury of the right of having the point of law discussed, seemed to be
the first step towards assuming those powers in cases of treason, the
exercise of which, in cases of libel, had drawn down upon the English
courts the censure of their Parliament. Would the gentleman say this was
nothing? Would he affirm that if a man were under trial for murder, the
court would be justified in saying to his counsel, You may, if you can,
disprove the fact with which the prisoner stands charged, but you shall
not endeavor to show that it does not amount to the crime with which he
stands charged? If you admit the killing, you shall not argue the point
that such killing does not constitute murder. Would the gentleman contend
that treason is better defined than murder? What is murder? Killing with
malice aforethought; can any definition be clearer? What is burglary?
Breaking in during the night. What is treason? The constitution defines
it as levying war against the United States; adhering to their enemies;
giving them aid and comfort. But what had definitions to do with the
case? Because murder was defined, had counsel ever been stopped in an
attempt to show that the killing with which their client stood charged
was not a killing with prepensive malice, a killing which constituted
murder? What was more common than to see the facts admitted, and the
crime not only denied, but disproved to the satisfaction of the jury;
and upon what principle shall counsel be arrested in the attempt to show
that the facts charged in an indictment for treason do not amount to
such a levying of war, or an adherence or aid to such enemies as would
constitute treason? Mr. R. said that the fact mentioned by the gentleman
from Pennsylvania was of a remarkable nature. He had never heard of a
similar proceeding, and he rejoiced that another instance of so black a
nature could not probably be furnished by any tribunal in this country.
The gentleman from Maryland, (Mr. DENNIS,) however, had entirely
abandoned the ground taken by his friend. He agrees that there is a
charge of an important nature exhibited, and if it was incorporated into
the resolution, and the inquiry confined to that subject only, he would
vote for it. The object of the one gentleman was only to confine the
inquiry, whilst that of his friend was to deny it altogether. He could
not thank the gentleman for his liberality. He would have what he asked
or nothing. He would never consent to confine the inquiry; if it could
not be full and free, let it be denied.
The gentleman from Maryland had, with very little dexterity, endeavored
to confound the resolution of inquiry with the articles of impeachment
which may follow from it, and said that if the House would consent to
confine the inquiry to any particular charge he would vote for it. It
was true that after articles of impeachment should have been exhibited
against the accused, the House would not be permitted to prefer any
new accusation, or to adduce testimony to prove any guilt other than
that which was charged in those articles. In the same manner as when
a criminal was indicted, evidence would not be suffered to be brought
forward to prove any act of criminality not contained in some one of the
counts of the indictment. But would gentlemen persist in confounding
things so entirely different, as to confine an incipient inquiry by the
same rigid rules which would govern a criminal trial? It was trifling
with the judgment of the House. The gentleman was eager for inquiring,
but the charge must be incorporated into the resolution, and the inquiry
confined to a specific point, before he could be brought to consent
to it. Whatever other misdemeanors might come to the knowledge of the
committee in the course of the investigation, he would not agree to have
them reported to the House. And at the same time he told them of the
struggle between his inclination and his sense of duty--his inclination
as a friend of the accused to grant the inquiry, his duty as a member of
the House and a friend of justice to refuse it. Mr. R. was sorry to find
the gentleman in this awkward predicament; he regretted that it was out
of his power to gratify him by narrowing the inquiry. This his duty would
not suffer him to do. He hoped, however, the strength of the gentleman’s
constitution would carry him through the arduous struggle in which he was
involved, by his wishes on the one hand, and his principles on the other.
Whilst so much was said on the subject of precedent, he hoped he might
offer a few cases to their consideration. He did not come to the House
armed with precedents. Neither his health nor leisure permitted him to
search for them. Gentlemen of greater industry, and who attached more
importance to them than himself, had furnished him with them. For his
part he thought precedents had nothing to do with the case, but for the
sake of those who thought differently, he would show the course which he
advocated was not destitute even of their support. Here Mr. R. referred
to Mr. Hatsell’s precedents. “On the 21st of April, 1626, Mr. Glanvylee,
from the select committee appointed to consider of the charges against
the Duke of Buckingham, reports that they desire the House will resolve
whether common fame is a ground for this House to proceed upon?” It is
resolved to consider this the next day. After a long debate the House
resolve that, “common fame is good ground of proceeding of this House,
either to inquire of here, or to transmit the complaint, if the House
find cause, to the King or Lords.”
Mr. R. begged to call the attention of the House to the opinion of a
gentleman, delivered during the debate, to which he must be permitted to
attach more importance than to that of the gentleman from Connecticut.
When he mentioned the name of Selden, he believed he should stand
justified in the opinion of the gentleman himself, and in that of his
warmest admirers. “These cases (said Mr. Selden) are to be ruled by the
law of Parliament and not by the common or civil law.” Mr. Littleton
says, “this is not a House for definitive judgment, but for information,
denunciation, or presentment, for which common fame is sufficient.”
Mr. Noy says, “There are two questions--first, Whether a common fame?
Second, Whether this fame be true? We will not transmit without the first
inquiry: but without the second we may; for peradventure we cannot come
by the witnesses; as if the witnesses be in the Lords’ House.”
Again, on the 16th October, 1667, the House being informed “that there
have been some innovations of late in the trials of men for their lives
and deaths, and in some particular cases restraints have been put upon
juries, the matter is referred to a committee.” This case (Mr. R. said)
was precisely in point. “On the 18th of November, this committee are
empowered ‘to receive information against the Lord Chief Justice Keeling,
for any other misdemeanors besides those concerning juries.’” Thus on a
particular fact, innovation in trials for life and death, a committee was
raised, and yet they were not confined to the examination of that single
charge, but empowered to inquire generally into the misconduct of the
judge. A stronger or more pointed precedent could not be conceived.
By the constitution, Mr. Randolph said, that House was vested with the
sole power of impeachment. How this power was to be exercised must
depend on their discretion, and on no other law or principle whatever:
for “these cases are not to be ruled by the common or civil law, but by
the law of Parliament.” That law of Parliament it remained with them
to establish. It could not be matter of surprise that he, one of the
leading principles of whose politics it was to support the weight of that
branch of the Government, and to be jealous of executive influence--it
could not surprise any one, that he should exert himself in behalf of
the constitutional rights of that House. When he saw the importance
which was attached to precedent, he was more than ever solicitous for
that which they were then about to establish. He trusted that they
would not consent to abridge the power with which the constitution had
invested them--to reduce it below the standard which the English House
of Commons had fixed as the measure of their own power in similar cases.
A time might come when a wicked President and his flagitious ministers
might so conduct themselves in office, as to make every man regret the
proceedings of that day, in case they should suffer their power to sleep.
The refusing to exercise it, then, would hereafter be adduced as a denial
of its existence. Such might be the circumstances of the times, that no
private man would dare to step forward with a specific charge against the
Executive. If they should deny an inquiry without a specific charge, they
would do all in their power to screen such a President and such ministers
at a future day. It had been remarked that, in this government, an
officer found guilty, on an impeachment, could not be punished capitally.
The sentence could only remove him from office, and disqualify him, for
ever after, from holding one under the United States. If, in a country
where the accused may be brought to the block, free, unfettered inquiry
is warranted against any rank however exalted--would it be denied here,
where the punishment was comparatively light? Should they hold the other
departments of the Government more inviolable than they were considered
even in England? Would they afford to a criminal, Executive or Judiciary,
a shelter denied by the law of that government? He hoped they would not.
He trusted that they would give an example of their readiness to bring
every offender to justice, however great might be his station.
Mr. GRIFFIN.--I had hoped that no subject would have been agitated during
this session which should have interrupted the tranquillity or disturbed
the harmony of this House, so necessary to the faithful and correct
discharge of our public duties; but, sir, I perceive, from the turn which
the debate upon the resolution now before the House has taken, that
sensations have been excited which I fear it will be difficult to allay.
The proposition now before the House, nursed with so much secrecy, and
forced on us so suddenly and unexpectedly, comes in such a questionable
shape, that I must beg the attention of the House for a few moments while
“I speak to it.”
What, sir, does the resolution demand of us? That a committee be
appointed to inquire into the official conduct of Samuel Chase and
Richard Peters, &c. But how is this inquiry to be conducted? Are there
any data by which the committee are to be guided? Is there any specific
charge to which their attention or inquiries are to be directed? None.
And who, sir, before this enlightened day ever heard of a committee of
inquiry being raised, without possession of a single subject to direct or
guide the inquiry? What, sir, erect an inquiring committee vested with
all the rights of a Star Chamber, and yet assign them no specific objects
of their duty! But, sir, the official conduct of these judges has given
offence--and are we now, sir, to probe and search the whole judicial
lives of these gentlemen, for causes of complaint and censure? Are the
records of the States of Maryland and Pennsylvania now to be ransacked,
for evidences of their guilt and cause of impeachment? I never have and
never shall deny the right of this House to inquire into the conduct of
public officers--but, sir, if the honorable mover of the resolution is
serious----
[Here Mr. RANDOLPH interrupted, and desired the gentleman to explain his
meaning by the word serious.]
Mr. GRIFFIN continued. I will answer the gentleman: my meaning is, that
if the gentleman believes there are just grounds for impeachment--if
he is in possession of information or facts, let him declare them,
and if they appear to my mind to be sufficient whereon to ground an
impeachment, let him demand it and I will join with him. Let him specify
the instances of malfeasance of which these judges have been guilty, and
I will unite with him--let him declare the malconduct of these public
functionaries, and I will cordially co-operate with him. If these judges
have travelled beyond the line of their duty, if they have wantonly
exceeded the limits of their power, I will aid in the infliction of such
punishment as they may merit; but, sir, I cannot, I will not, in this
indirect manner, wound the feelings or censure the characters of men,
holding high responsible offices under your Government. Could I induce
myself to believe that the course now proposed to be pursued is correct,
I will gladly give it my assent; but for reasons very different from
those the advocates of this measure adduce: could I deem it correct, I
would support the resolution because I believe the characters implicated
therein will safely pass the ordeal preparing for them, and that the
inquiry will redound to their honor. I would cheerfully support the
resolution, because, by the impeachment which I predict will follow,
an opportunity will be offered to remove the load of unmerited calumny
under which the Federal Judiciary of the United States have too long
labored, and with which our public prints have been long filled. But the
course is incorrect--the measure in its present shape appears to me to
be fraught with incalculable mischief to our country, and I never will
assist in the establishment of a precedent which may at some future day
be made an engine of persecution, as “wicked as intolerant.” Mr. Speaker,
let me ask of you, sir, to remember the consequences which may flow from
the adoption of this resolution--let me conjure this House to reflect
upon the dreadful effects which must arise to us, if, upon the bare
assertion of a single gentleman, unsupported by any direct allegation,
a committee of this nature shall be raised, a precedent of this kind
established, what public character will be safe? nay, sir, how soon may
not we ourselves feel its baneful influence? Far be it from me, sir, to
impute to the honorable mover of the resolution any impurity of motives.
I believe his conduct has proceeded from a consciousness of duty, and
from a similar consciousness of duty I must oppose the measure. I cannot
deny the power of this House to adopt the resolution upon your table, but
I beg of you to pause ere you take the fatal step, and do not, because
“dressed with a little brief authority, play such fantastic tricks before
high heaven as make e’en angels weep.”
Sir, I have endeavored to discharge what I conceived to be my duty upon
this occasion, and when experience shall fatally convince us of the
dreadful effects of the precedent we are now about to establish, I shall
derive consolation from the reflection, that I lent my feeble aid to
check the overwhelming torrent.
Mr. EUSTIS said, he did not view this subject in the same light with the
gentleman last up; he did not see those awful consequences which he had
pointed out. He hoped the time would never come, when an inquiry into the
conduct of an officer of the Government should be deemed a subject of
alarm in that House. It was the first principle of the constitution, that
every man was amenable to the constitution and laws of his country; and
however elevated any one might be, that he could not be raised above the
reach of inquiry. The observations of the gentleman who had last spoken,
and of others who had preceded him, were predicated on a principle that
was not correct. If the resolution on the table was to impeach the judge,
those observations would be relevant, but they were incorrect on the
preliminary motion to inquire.
In making up, said Mr. E., my judgment on this subject, I have endeavored
altogether to avoid the inquiry, whether the officer implicated in this
resolution, has so conducted himself as to require impeachment by this
House. I have not accepted the opinion of the mover of the resolution,
and I have excluded all the other information adduced in the debate;
because I consider it as alone applicable to the question of impeachment,
which is not now before the House. The question before the House is a
very different one, and, in my opinion, it is plain and simple. What
is it? It is that a committee be raised to inquire into the official
conduct of a certain public officer. When a member of this House, under
the obligations of honor, and the additional obligations of an oath,
rises and takes upon himself the responsibility of moving an inquiry into
the official conduct of a public officer, which can only be effected in
virtue of the impeaching power of this House, which power it exclusively
possesses, I view the request for an inquiry in the nature of an
information laid before the House as the grand inquest of the nation.
When this proposition was made, the mind of every gentleman was naturally
cast about for the situation of the officers in question. If it shall be
the opinion of the House that their conduct is such as to afford grounds
for an impeachment, it will be granted that it is an indispensable duty
to make the inquiry. If, on the other hand, the House are of opinion that
no testimony can be produced which will lead to an impeachment, then it
is due to the officers to institute an inquiry. The object of an inquiry
is two-fold--arising from the duty to the people, and that due to the
officer whose conduct is impeached. If gentlemen are of opinion that, in
this case, there are no grounds for impeachment, then it is clear that
the conduct and character of the officer ought to be vindicated, and
the inquiry instituted to afford him the means. If they are of opinion
that there are grounds for an impeachment, then the duty they owe to the
people urges them to the inquiry. In the constitution I find no excuse,
no justification, on which to ground a refusal to institute an inquiry
into the conduct of any public officer charged with misbehavior.
To such an inquiry, what is objected? That the power may be abused.
Indeed, the objection is, that it is abused in this instance. How abused?
To argue from abuse of the power against the use of it, is no argument at
all. If the House believe either alternative I have mentioned, and one
or the other you must believe, it is their duty to make the inquiry. But
it is said that the committee are to be clothed with power to send for
persons and papers. Granted. That power is indispensably necessary. It is
said their powers are to be inquisitorial. This is not true. Will not the
committee be accessible by every member of the House, and what are their
ulterior powers but to collect facts, and to express an opinion whether
they afford grounds for an impeachment? That opinion they will eventually
submit to the House, and, without its approbation, it will be settled.
It is further said that no specific charge is adduced, and if there
were, gentlemen say they would vote for the inquiry. But if a specific
charge were made, I ask if any member would be enabled to give a more
enlightened vote than on the present resolution? I consider the general
power to inquire as most important, and that it is the duty of the House,
on such occasions as the present, to enlarge rather than to narrow the
field of inquiry.
It is further said that this course of proceeding will discourage
respectable men from accepting the offices of Government. But certainly
every officer, from the President to the most menial, knows that he holds
his office subject to inquiry, to impeachment, and to punishment, in case
of criminality.
If the House do not pursue the present course, from what quarter are
they to expect the origination of an inquiry? Is it to be supposed that
it will come from the citizen, when his life and fortune are probably
at the disposal of particular officers charged with misconduct. This
line of inquiry ought, in my opinion, to be courted and encouraged; more
especially in this instance, after the course which the debate has taken,
and after specific charges have been adduced. The debate has given an
importance to the inquiry, which its original merits may not, perhaps,
have entitled it to.
When this subject was first introduced, it appeared to me novel, and
that there were no precedents in point under the Federal Government. It
is time that this precedent should be established. It is time that every
officer should know that this House is ready at any time to inquire
into his official conduct, if charged with misbehavior; and instead of
declining the inquiry, in this instance, from a false delicacy to the
officer, it becomes the House to embrace the resolution and make the
inquiry. If evidence shall be collected, and it appears that there are
no grounds for impeachment, the officer will be restored to the public
confidence, and will be acquitted. If, on the other hand, it appears
that he has been guilty of malfeasance in office, a duty will be imposed
upon the House, from which they cannot recede, to bring him to trial.
Mr. THATCHER.--As gentlemen seem to consider the decision of the court
in the trial of Fries as unprecedented, I beg leave to refer them to
the cases of the United States _versus_ Vigol, and the same _versus_
Mitchell, 2 Dallas’s Reports, 346 to 357. They will find that the
decision of the court, in the case of Fries, was exactly conformable to
cases adjudged in 1795. Without troubling the House with the whole of
those cases, I beg leave to read the decision of the court in the last
case. “The charge of the court, says the reporter, was delivered to the
jury in substance as follows. Patterson justice. ‘The first question
to be considered is, what was the general object of the insurrection?
If its object was to suppress the excise offices, and to prevent the
execution of an act of Congress, by force and intimidation, the offence,
in legal estimation, is high treason: it is a usurpation of the authority
of Government; it is high treason by levying of war.’” The decision,
sir, is also conformable to the English authorities. The charge then
against Judge Chase and Judge Peters, after divesting it of the coloring
which imagination has given it, amounts to this--that, in the trial of
Fries for treason, the court prevented the counsel from arguing to the
jury against a point of law long settled by that and other courts of
the United States. I have attended closely to the statement made by the
gentleman from Pennsylvania, (Mr. SMILIE,) and I believe I am correct.
The very point which the counsel of Fries would have argued to the jury,
was that which had long before been settled by the courts of the United
States. I contend, sir, that this court did no more than they had a right
to do--no more than is practised by every well regulated court. They
prevented counsel from arguing law in the face of the authorities, and of
the opinion of the court. That this is usual, I appeal to gentlemen of
the law who are present. This, sir, is the only fact stated to the House
upon which the motion is founded.
The gentleman from Virginia (Mr. RANDOLPH) has said, that he has been
informed of facts, which convince him that an inquiry ought to be made.
But that gentleman has not stated to the House what those facts are.
It has been contended, that where a member of this House shall state
that he is convinced that an inquiry ought to be made, the House ought
to institute such an inquiry. Precedents have been adduced to prove
that this has been done in the British Parliament. There certainly has
been no case cited where an inquiry has been commenced upon the motion
without stating his facts or his evidence. But whatever may have been the
practice in England I can never consent to vote upon any impressions or
convictions but my own.
If the official conduct of the judges upon the trial of Fries was such
as to require the interposition of this House why, (as the gentleman
from Connecticut, Mr. GRISWOLD, has asked,) why was not this inquiry
sooner announced? This trial, I am told, was in February, 1800. It took
place within the hearing of Congress. It was the subject of universal
attention. Why has it slept four years? Upon what ground shall we invest
a committee with power to ransack the country for charges against our
judges? Shall we, upon the motion of a member--shall we, upon the
statement of the gentleman from Pennsylvania, (Mr. SMILIE,) commence
an inquiry, troublesome and expensive--an inquiry, which must attach
suspicion to the official conduct of the judges? Sir, I respect the
conduct of the gentlemen who attempt to remove obstructions from the
stream of justice, but I must be convinced that obstructions now exist,
before I can vote for this resolution.
Mr. EARLY.--Like other gentlemen who have gone before me in this
discussion, I do not consider myself at liberty to vote against the
resolution on the table. Like them, I deem myself bound to vote for an
inquiry into the conduct of any public officer, when that inquiry is
demanded by a member of this House. After the view taken of the merits
of this measure by the gentlemen from Pennsylvania and Virginia, I did
expect that all further opposition to it would have ceased. In this
expectation I have been disappointed.
I feel constrained to vote in favor of this resolution, because I
believe that the inquiry it contemplates is an act of justice due to
the people of the United States on one hand, and to the characters of
the individuals charged, on the other. A charge of high crimes and
misdemeanors has been made on this floor against two individuals, and
two members of this House have demanded an inquiry into their official
conduct. To this demand may be added the weight of public opinion. I am
apprized of the delicacy of this ground, and when I resort to it, it is
my wish to be understood as meaning that when charges of a high nature
are instituted and reiterated from one end of the Union to the other,
so as to create a general belief, so as to destroy confidence in the
principle and integrity of those who administer justice, and to beget
a suspicion that justice cannot be obtained equally by all men; under
such circumstances the public voice demands an inquiry into the truth of
the charges. Is this a fact, or is it not, in relation to the officers
implicated in this resolution? I presume that it is the fact to a great
extent will not be denied. Every gentleman on this floor, in the habit
of reading the public prints, must have had so forcible an impression
made on his mind on this subject, as not to have lost a recollection of
the conduct charged upon one of the judges named in this resolution, in
the case of Fries, Cooper, and Callender. I cannot, therefore, refuse my
assent to the inquiry, because I believe it due to the public, as well
as to the individuals charged with the improper conduct, and who, if
they were on the spot, would undoubtedly memorialize us for an inquiry.
Indeed one of the officers referred to in the resolution, if conscious
of his innocence, ought, in my opinion, long since, to have demanded
an inquiry into his official conduct, when he witnessed the strong and
numerous charges against him in the public prints from one end of the
continent to the other.
It is objected to this resolution that no proof has been adduced to
the House of the truth of the allegations preferred. In my mind there
is all the difference that can be imagined between an inquiry and
an impeachment; and almost all the arguments urged on this occasion
apply exclusively to an impeachment. A strong proof of this has been
given by the gentleman who has just sat down. That gentleman (Mr. R.
GRISWOLD) has taken this remarkable ground, that this House ought not to
inquire without proof. I suppose he meant, by proof, the depositions of
witnesses; this is, in other words, saying that we, whose constitutional
duty it is to inquire, may omit to do it, because they whose duty it is
not to inquire, have not done it.
The present resolution is nothing more than this: A certain officer of
the Government is charged, in the face of the nation, with malfeasance
in office, and a committee appointed to inquire into the truth of the
charge. Gentlemen allege that the committee is to be appointed to inquire
what accusations can be found, and then for testimony to sustain them.
But this is not so. The accusations have been long since made, and they
are not of a day, but of a year’s standing.
The analogy between the functions of this House and a grand jury, is
correct and forcible. Before a grand jury, it is the right of any
individual to apply for and demand an inquiry into the conduct of any
person within their cognizance; and it is more especially the right of
any member of the jury to make such a demand; and it is their bounden
duty, according to their oaths, to make the inquiry when so demanded.
The official conduct of the judges I view as more delicate and
important than that of any other description of officers; for, on their
impartiality the whole people of the United States depend for obtaining
justice in ordinary cases, and individuals depend, in the last resort,
for the preservation of their lives. Their official conduct should,
therefore, not only be correct, but likewise free from suspicion. Simply
to be charged ought to produce an inquiry; and I must confess that a
recent case, in which the integrity of a judicial officer was impeached,
excited my warmest approbation. I mean the case of a judge (Judge Tucker)
in a neighboring State, who, on a suggestion believed by no man, deemed
it a duty to himself and his country to demand an inquiry into his
conduct.
Another view, by no means unimportant, which may be taken, is, that the
reputation of the Government, of which the judges are a component part,
demands the inquiry in question. Will any gentleman pretend to say that
reputation is not at stake,--that it is not affected at home or abroad
by the charges which have been so long and so loudly made? I presume not.
Whether those charges are true or not, is not the question; for, whether
true or not, so long as they are generally believed, the reputation of
the Government is affected; its reputation for impartial justice is
affected, and deeply too. To refuse this inquiry would be to give weight
to this impression abroad--to add to the suspicion, at home and abroad,
that impartial justice is not done to all men. Let us, then, make the
inquiry, and restore the reputation of the Government, by inflicting a
proper punishment upon these officers, if guilty, and, if innocent, by
proving the charges against them calumnies.
Mr. EPPES.--If, in adopting the resolution before us, we were to attach
odium to the characters in question, I should feel no surprise at
the course pursued by the gentlemen who oppose this inquiry. In this
country the official conduct of every man is, and ought to be, subject
to examination. It is not the examination, but the result of that
examination, which attaches merit or demerit to a public character. In
a Government like ours no principle ought to be cherished with greater
care than a free inquiry into the conduct of public officers. So friendly
am I to this principle in its fullest extent, so necessary do I believe
it to be to the preservation of that purity in public officers essential
to a republic, that it will always be sufficient for me to vote an
inquiry, for a member to declare he considers an inquiry necessary. A
proper regard to his own reputation will always, I am certain, prevent
any member of this House from calling on us to exercise this important
duty on light or trivial grounds. As to the extensive field of inquiry to
which this doctrine may lead, I care not; and whenever a member of this
House shall rise in his place and declare that he considers an inquiry
into the conduct of a public officer or officers necessary, I shall be
ready to pass the whole circle in review, to begin with the first and end
with the last, to vote an inquiry into the conduct of each, and even to
go further, to vote an impeachment if necessary. I shall on every such
occasion consider it a duty I owe to the individual accused, and to the
community in whose behalf the accusation is made, to vote an inquiry.
Thus much for the general principle which would induce me to vote for
this resolution, if no specific charge had been made. In the present
case, however, a specific charge of a serious kind has been made by a
member from Pennsylvania; and, however gentlemen may have attempted to
weaken the force of this charge, it does substantially amount to this:
that, by the opinion of a judge, a citizen of the United States was
deprived of his constitutional right to counsel, when arraigned for his
life. I will not, however, dwell on this charge. It has been placed by a
gentleman from Maryland (Mr. NICHOLSON) in a point of view satisfactory
to myself, and, I believe, to the House. I consider it, however, my duty
on this occasion to mention a trial which took place in the Commonwealth
of Virginia, which affords another specific charge against Judge Chase. I
was not present at this trial, and am not personally acquainted with the
circumstances. I believe, however, that in the Commonwealth of Virginia
but one sentiment prevails as to the conduct of Judge Chase on this
occasion, viz: that it was indecent and tyrannical. In the course of
the trial he refused to allow a witness on the part of the prisoner to
be examined, because the witness could prove the truth of a part only,
and not the whole of the words laid in the indictment. By a system of
conduct peculiar to himself, he deprived the prisoner of the aid of Mr.
George Hay, as counsel, a man, who, although not as generally known as
some others in our State, is inferior to none in his profession. I do not
mention these circumstances as hearsay evidence, but as facts, which I
am induced to believe can be established by legal testimony. If, on this
statement, there is any gentleman who can refuse an inquiry, I am willing
to leave him in the enjoyment of his opinion. For my own part, I shall be
always ready, on the demand of any member of this House, to exercise my
constitutional right of inquiry, and, without partiality or prejudice,
pursue the course pointed out by my duty, whether it shall lead to
impeachment or an honorable acquittal.
Mr. NICHOLSON rose for the purpose of calling the attention of the
House to precedents. When he yesterday addressed them he had thought it
unnecessary to introduce authorities from foreign nations; but as they
had been insisted on by the opponents to the resolution, he would refer
to two or three; and he was more solicitous to do so at the present
moment, as he saw a gentleman from Connecticut (Mr. DANA) about to rise,
and he wished to call the gentleman’s attention to them, in order that
he might remark on them, and show, if it was to be done, that they did
not apply to the case under consideration. If gentlemen would refer
to the powers exercised by the Commons of England, for time almost
immemorial, and to those exercised by the several State Legislatures,
he believed that precedents innumerable would be furnished. The Commons
of England were the grand inquest of the nation. As such it was their
duty to inquire into the official conduct of all those intrusted with
the powers of Government. Every officer in the realm was liable to
impeachment by them. The same principle would be found to run through the
constitutions of most of the States, and it was wisely introduced into
the Constitution of the United States. The power to impeach is admitted
to be in the House of Representatives, and the only question is, as to
the manner in which this power shall be exercised. The proposed method
is called a loose one, and we are asked to show some precedent for it.
The House of Commons at the commencement of every session appoint what
is there called a committee of grievances and courts of justice. Many
of the State Legislatures appoint a similar committee annually, and,
in the State from which he came, the House of Delegates always appoint
a committee of grievances and courts of justice. It was one of their
standing committees, and the appointment was as regular and as usual as
the appointment of a committee of claims in this House. What then he
inquired was the duty, what the authority of this committee? In England,
in Maryland, and in every other State where it exists, it is their duty
to inquire into the conduct of every officer of the Government, to call
witnesses before them to prove official misconduct, to report offences to
the House from which their powers are derived, and recommend the proper
measures to be adopted.
This House, like the Commons of England, and the most numerous branch
in the State Legislatures, is the grand inquest of the nation; they are
to inquire into crimes and bring offenders to justice. It had not, he
said, heretofore been customary for this House to appoint a committee of
grievances and courts of justice, but he believed no man would deny the
power, and when appointed they would not only have the authority proposed
to be in this committee, but one infinitely more extensive. They would
have the right to inquire into the conduct of all civil officers, and to
report such facts as might come to their knowledge. If, then, we could
with propriety, and agreeably to precedent, authorize an inquiry into
the conduct of several hundred officers, could it be denied that the
same precedent would warrant an inquiry into the conduct of two only? In
5th _Comyn’s Digest_, page 204, it would be found that a committee of
grievances and justice was one of their standing committees, and in page
205 it was declared that they might “summon any judges and examine them
in person upon complaint of any misdemeanor in office.” He presumed it
had not been thought necessary heretofore to appoint a general committee
of this kind, but at present the necessity was apparent, as a complaint
had been made to the House of the official misconduct of two judges.
Again, in the same book, page 209, it is said, “The Commons are the
general inquisitors of the realm, and therefore if a Lord, spiritual or
temporal, commit oppression, bribery, extortion, &c., the Commons shall
inquire of it, and if, by the vote of the House, the crime appears to
have been committed, they transmit it, with the evidence, to the Lords.”
This, he said, would clearly show, what indeed he thought common sense
would teach every man, that the inquiry should be made before proof was
exhibited upon which an impeachment was to be grounded. In the same page
it would be seen that “common fame is a sufficient ground of a proceeding
in the House of Commons by inquiry, or by a complaint, if need be, to
the King or Lords.” And _Rushworth’s Historical Collection_, page 217,
is cited, it is said, by some of the ablest lawyers of that day that “if
common fame were not to be admitted as public accusers, great men would
be the only safe ones, as no private man would venture to complain of
them.” Mr. N. referred to these authorities at that particular stage of
the discussion, as he was desirous of giving gentlemen an opportunity of
commenting upon them. As he had no wish to prolong the debate, he would
not multiply observations upon that point, but could not sit down without
noticing what had fallen from a gentleman from Massachusetts, in which he
had again attempted to vindicate the conduct of the judges upon the trial
of Fries.
The gentleman had referred to a case in _Dallas’s Reports_, respecting
the Western Insurrection, in which he says the point of law determined
upon the trial of Fries, had been previously settled by one of the
federal courts, and from thence infers that Mr. Chase and Mr. Peters were
justified in preventing counsel from arguing it a second time. That such
conduct might be perhaps excusable in a civil cause he was not prepared
to deny; but, in a case of criminal jurisdiction, involving the guilt or
innocence of a man whose life was to be the forfeit, he held it totally
unjustifiable.
All men, he said, were acquainted with the circumstances of what was
generally called the Western Insurrection. Some of the Western counties
of Pennsylvania were opposed to the excise law. A considerable majority
of the people had resolved to oppose its execution, and took strong
measures to prevent individuals from accepting offices under it, and
compelled some of them to resign the places to which they had been
appointed. While they professed an attachment to the Government of the
Union they resolved to resist the execution of one of its laws. Among
these was a man by the name of Mitchell, and he was charged with high
treason before the circuit of Pennsylvania in which Judge Paterson then
presided. A doubt existed whether the resistance to the execution of a
law, even by force of arms, was such a levying of war within the meaning
of the constitution, as amounted to treason. What was the conduct of the
judge on that occasion? He had no disposition to preclude inquiry. He
had no wish to keep the jury in ignorance by forbidding fair and open
argument. On the contrary, it appeared from a note on page 348 that
he called the attention of the prisoner’s counsel to the point, and
requested that they would notice it in their observations. This was done
before the defence was opened, and he said he should beg leave to read a
part of the argument made in favor of the prisoner.
“The counsel for the prisoner (E. Tilghman and Thomas) premised
that they did not conceive it to be their duty to show that the
prisoner was guiltless of any description of crime against the
United States, or the State of Pennsylvania, but they contended
that he had not committed the crime of high treason, and
ought, therefore, to be acquitted on the present indictment.
The adjudications in England upon the various descriptions of
treason, had been worked incautiously, into a system, by the
destruction of which the Government itself would be seriously
affected; but even there, the best judges and the ablest
commentators, while they acquiesce in the decisions that have
already taken place, furnish a strong caution against the too
easy admission of future cases, which seem to have a parity
of reason. Constructive and interpretive treasons must be the
dread and scourge of any nation that allows them--_1 Hale, P.
C._, 132, 259--_4 Black. Com._, 85. Take, then, the distinction
of treason by levying war, as laid down by the attorney of
the district, and it is a constructive or interpretive weapon
which is calculated to annul all distinctions heretofore
wisely established in the grades and punishments of crimes,
and by whose magic power a mob may be easily converted into a
conspiracy, and a riot aggravated into high treason.”
Such, he said, was the opinion of two gentlemen ranking high in their
profession, and who would not be charged with having any feeling toward
the offence or the offender inconsistent with the rights or interests
of the Government. The whole argument was too lengthy to be read to the
House, but he considered it well worth the perusal of every American.
Able as it was, however, it had not the wished for weight with the court.
Judge Paterson gave the following charge to the jury: “The first question
is, what was the general object of the insurrection? If its object was to
suppress the excise offices, and to prevent the execution of an act of
Congress, by force and intimidation, the offence, in legal estimation,
is high treason; it is a usurpation of the authority of Government;
it is high treason by levying of war.” Sir, said Mr. N., this opinion
of the court may have been honest; I mean not to impeach the purity
of motive which dictated it, but I mean to show that the offence with
which Mitchell was charged, the resistance to the execution of a law,
was not considered as treason by the highest existing authority of this
country. Mitchell was pardoned by the President of the United States, and
Congress, not long after, expressed their opinion on the subject in the
most ample manner.
The trial of Mitchell which I have just quoted took place in 1795, and
in 1798 the subject was taken up by Congress, who, by the act of the
14th of July, 1798, provided that the resistance to the execution of a
law should be considered a high misdemeanor only, punishable by fine and
imprisonment. The act is in these words: “If any persons shall unlawfully
combine or conspire together, with intent to oppose any measure or
measures of the Government of the United States which are, or may be
directed by proper authority, or to impede the operation of any law of
the United States, or to intimidate or prevent any person holding a
place or office in or under the Government of the United States, from
undertaking, performing, or executing his trust or duty, he or they
shall be deemed guilty of a high misdemeanor, and on conviction before
any court of the United States having jurisdiction thereof, shall be
punished by a fine not exceeding $5,000 and by imprisonment during a
term not less than six months nor exceeding five years.” Here, sir, the
resistance to the execution of a law is declared to be a high misdemeanor
only, punishable by fine and imprisonment. Fries was tried in 1800,
two years after the passage of this law. The offence of which he had
been guilty was rescuing prisoners from the marshal by force, thereby,
in the language of the act, “preventing an officer of the United States
from performing and executing his duty,” and it was to show that he was
punishable under this act by fine and imprisonment only, that his counsel
were desirous of bringing the law before the jury. This, however, the
court refused; the man was convicted of high treason, and was sentenced
to a most ignominious death. Let such conduct be vindicated where and by
whom it may, I must declare that it can never meet my approbation.
Mr. DANA.--It is to be regretted, Mr. Speaker, that a resolution so
novel and of so much importance as that on the table was not postponed,
at least for one day after it was presented to the House. Had this been
done, gentlemen might have had some opportunity deliberately to examine
the subject, before they were required to make a decision. But as the
resolution was moved without giving any previous notice, and has been
pressed upon us immediately after it was moved, I do not feel myself
prepared, as I could have wished to be on such a question, before
attempting to deliver my sentiments in this House. Unprepared, however,
as I am, I request your indulgence while I offer a few remarks.
I will first attend to some precedents mentioned by the gentleman
from Maryland, (Mr. NICHOLSON.) He has stated that it has been usual
in the English House of Commons to appoint a committee for courts of
justice, with power to inquire into the proceedings of courts, and for
this purpose to call persons before them for examination. But, sir,
is not such a committee appointed for general purposes, not directed
against any individual, and therefore not affecting the character of any
magistrate? Their powers relate to the judicial system generally, and
do not implicate any one of the judicial officers. Does the resolution
on the table propose a committee of this kind? On the contrary, it is
explicitly directed against two of the judges. If gentlemen would justify
their proceedings by the practice of the British House of Commons, let
the resolution be made to have a general reference to all the courts,
instead of being pointed, as it now is, against particular persons.
In its present form it departs essentially from the principle of the
case mentioned by the gentleman from Maryland, and therefore cannot be
warranted by that precedent.
The gentleman has also stated that a committee was appointed by
the last Congress to investigate the accounts of the officers of
Government, merely upon common report. But it should be remembered
that those officers were officers of the Executive Departments. It is
the acknowledged duty of such officers--it is made their duty by law
to give information to Congress, whenever required, upon any of their
public transactions. And it is the peculiar right of the House of
Representatives, as guardians of the Treasury, at any time, to inquire
into the expenditures of public money. But are the judges of the United
States placed in the same situation with the Executive officers? Are
they to be under the same control, and equally dependent? You may indeed
impeach the judges, if guilty of impeachable offence. But what other
power over them is given you by the constitution? It should further
be remembered, that the resolution for appointing the investigating
committee did not criminate any particular officer. At first it was
proposed to examine only the accounts of the former Secretary of
State. But upon its being suggested by a gentleman from Massachusetts,
(Mr. EUSTIS,) who has been so strenuous an advocate for the present
resolution, that it would be improper in that manner to attack the
character of a particular officer, the resolution was made general, and
extended to the accounts of all the Executive Departments.
Upon the like principle, the resolution now on the table is improper. My
objection to it is, that it points out two particular officers as objects
of suspicion, and proposes a committee for inquiring into their conduct
without assigning any cause, and without specifying any subject of
inquiry. Gentlemen have expressed a dissatisfaction that such a committee
should be compared to the Star Chamber or the Inquisition. If they do not
perfectly resemble the Star Chamber, formerly known in England, or the
Inquisition of Spain, the proposed powers of the committee are certainly
indefinite and inquisitorial. Perhaps, if a comparison was necessary,
they might more properly be compared to the State inquisitors of Venice,
who are well known to have formed one of the most detestable tyrannies
ever tolerated in a country pretending to freedom.
If charges were specified in the resolution, a member of this House on
moving it might then have a right to demand an inquiry. But are the House
bound to investigate the conduct of a particular officer, without any
charge against him? Gentlemen have said much about the general right of
this House to inquire into the conduct of public officers, as if this
were the point in dispute. But who has denied the right of inquiry as
incident to the power of impeachment? When any officer is charged with
an impeachable offence, it is admitted to be, and from the nature of the
thing it might be, the right of the House to inquire into the truth of
such charge. I trust no gentleman in opposition to the present resolution
can be found so ignorant of the true principle on which it is opposed,
as to deny the responsibility of the public officers, or the right of
the House to inquire into their conduct. But, the right being admitted,
the question is made as to the exercise of that right in the manner now
proposed. When this House is called upon to direct the whole force of its
influence against a particular judge, is it not reasonable, is it not
just, that some charge should first be stated against him? This is but a
decent respect to judicial character. It is but a decent respect to the
character which becomes the assembled Representatives of a nation. The
person implicated might then be enabled to meet the inquiry and obviate
unfounded suspicion. Our power with respect to the judges is the power of
impeachment; but we are not, therefore, justified in wantonly assailing
their characters and sporting with their sensibility to reputation. The
right of inquiry relates to impeachable offences. Shall we, then, inquire
where no offence is stated? So far is the resolution from stating what
would warrant an impeachment, that it does not mention any offence, or
refer to any transaction.
The gentleman from Virginia, who moved the resolution, (Mr. J. RANDOLPH,)
has, indeed, declared his own conviction, that the judicial officer
in question had done wrong. Might not other gentlemen also have their
opinions and exercise their own judgments in forming them? They ask for
the reasons of his conviction before they vote for his resolution. His
information, he says, was received in such a manner that he does not
choose to disclose it. If any person has communicated any thing to him
confidentially, he is not desired to name his informant. The gentleman
shall not be desired by me to make any disclosure which would offend
against the most delicate sense of honor. But can it be improper for
him to state the general nature of the offence which he believes to
have been committed? Will this violate any honorary confidence? He is
desired to make such a statement that other members of the House may
have an opportunity of judging whether the believed offence will warrant
a vote of impeachment. In cases of this kind, is any member to be
deemed infallible? When a gentleman, in his place, states a fact as of
his own knowledge, his veracity is regarded as unquestionable; but his
infallibility is not supposed to extend to matters of mere opinion. Upon
the principle of its being possible for the gentleman from Virginia to
err in opinion, and its being equally the right of the other members to
judge what conduct amounts to an impeachable offence, it might have been
reasonably thought that he would at least state to the House the nature
of the facts on which he relies as the basis of his resolution. If he, or
any other member, declaring his conviction that a judge has misdemeaned
himself in office, will exhibit to the House a statement of any fact,
or series of facts, which would warrant an impeachment, I will be ready
instantly to vote for an inquiry. But nothing of this kind is exhibited,
and therefore the resolution on the table is now opposed. Before you
agree to oppress a judge with all that weight of suspicion which may be
imposed by a vote of this House, let him be permitted to know what part
of his conduct is supposed to be exceptionable, that opportunity may be
had in the progress of any inquiry to vindicate himself against unmerited
reproaches! Instead of a course of proceeding so fair and obviously
just, the resolution on the table marks two of the judges for public
suspicion, without specifying any supposed misconduct. It marks them as
public objects of suspicion throughout the whole of their judicial life,
and, without naming any thing, invites private enemies to accuse them of
every thing.
To support such a resolution, common fame has been mentioned in the
course of debate, as a sufficient ground of proceeding; and this idea is
supposed to be authorized by English precedent. Whatever may have been
done formerly, and in a period of rudeness or violence, the more improved
system of modern jurisprudence should discard such a doctrine if it ever
prevailed. But even that doctrine, if admitted, would not justify you in
adopting the present resolution. You cannot thence infer the propriety of
proceeding against a person who is not accused of any thing punishable.
Will it be pretended that the common fame, which is to be a ground of
proceeding, does not refer to any offence or to any transaction? Common
fame, if admitted for proof, must be supposed to apply to some subject of
complaint. On the principle even of this very questionable doctrine, a
statement of some charge is requisite. What, then, in the present case,
is the accusation which could be supported by common fame? If there be
any such, let it be stated.
The gentlemen who advocate the resolution in its present form fail in
their efforts to support it, notwithstanding all the aid which they have
sought from “the leading-strings and crutches of precedents,” (to use
the language of the gentleman from Virginia.) On general principles, on
the broad basis of universal right, the resolution is condemned; and no
precedent is adduced which can justify it. I do not wish to shield any
public officers, whether judges or others, who may merit impeachment,
but I wish the House, when acting as public accusers, to proceed in
such a manner as not to do injury to any individual. Justice is due to
the individual as well as to the public. No public duty can require
this House to adopt a resolution of general reproach, yet stating no
public offence. And it but illy accords with the principles of justice
to subject the judicial officers of the Union to all the inconvenience,
vexation, and expense, of being obliged to vindicate themselves against
secret accusations, which it may be more difficult to discover than to
overthrow.
You will observe, sir, that I do not enter into any particular
examination of the case referred to by the gentleman from Pennsylvania,
(Mr. SMILIE,) whether there was a controversy as to prerogative
and privilege between the court and the bar, in which the pride of
professional rank appeared in opposition to judicial authority. Whether
the judge very properly refused to yield to the counsel, or whether the
court committed an error in pronouncing the law, these are topics which
I think it needless to examine in considering the resolution now on the
table; for the resolution itself states nothing, and there is no case
before us for examination.
On so grave a subject as the present, when we are called upon to aid in
the administration of justice, it was to be desired that the advocates of
the resolution should so far regard their own exhortations as to refrain
from attempting to enkindle the animosity of party. The gentleman from
Pennsylvania (Mr. SMILIE) seems to have thought himself at liberty to
pursue a different course. But, considering the nature of the question
on which our votes are to be given, I hope to be excused if I deem it
not proper in this debate to reply to him on the various topics of party
discussion which he has chosen to mention, although the task might be
easy indeed to repel his charges against the former Administration. A
single observation, however, may be proper on a law to which he has
alluded in the language of censure. There was at least one prominent
feature which might recommend it to the friends of truth. It expressly
declared that the truth might be given in evidence.
Mr. DENNIS observed that in the course of the remarks which he had the
honor of making yesterday, he had declared himself in favor of the
proposed investigation, provided it were made on proper principles;
and, in order the more clearly to illustrate his ideas and evince his
sincerity, he had read in his place a resolution embracing all the
facts which had been suggested to the House as the foundation of this
proceeding. He had then said he would not pledge himself to offer a
resolution such as he then read, but would vote for it if offered by
others. As the gentleman from Virginia (Mr. RANDOLPH) had not accepted
his overtures, and in the course of his observations had done him the
honor of noticing some of his ideas expressed in yesterday’s debate, he
rose principally for the purpose of offering an amendment, and partly
for the purpose of replying to one or two of the gentleman’s remarks.
He was not a little surprised at the animated strain in which that
gentleman had addressed the House in the course of this morning, nor
did any thing appear to have fallen from any gentleman, in the course
of the discussion, which appeared to him calculated to produce so much
excitement as he had manifested. But as he did not claim to set up his
own feelings or his own conduct as the standard by which the feelings
or actions of others ought to be guided, and as the gentleman had
applied his observations without implicating motives, he had not at all
interrupted the equanimity of his disposition. He had exercised a right
which he should always be disposed to accord to that gentleman, and every
other member--the right of placing the observations of his opponents in
the most ludicrous point of view of which they were susceptible. In this
right he would also indulge himself whenever the subject required it.
The gentleman from Virginia, in replying to some of his observations,
had said that he had conceived the charge exhibited was of a very serious
nature, but did not appear to comprehend in what respect he considered
it so, and therefore he wished to explain in what manner he considered
it as such. He considered it as serious, inasmuch as it was calculated
to excite suspicion and asperse the official conduct of the gentlemen in
question; but did not mean to insinuate, but on the contrary repelled
the idea of its being serious as regarded its sufficiency, if true, as
a foundation of impeachment. In order to show that the conduct of the
judges had not been so highly censurable even as the statement of the
gentleman from Pennsylvania, (Mr. SMILIE,) or his colleague and the
gentleman from Virginia, seemed to suppose, he begged leave to state
his ideas as to the rectitude of their conduct. Here he might use the
observation of the gentleman from Virginia, applied to one of his own
remarks, and say that gentleman had with no great dexterity confounded
two principles as distant from each other as the northern and the
southern pole. He seemed to assimilate the case in which the court have
arbitrarily withdrawn the question of law entirely from the jury, to
the conduct of the court in this case, which only went to restrict the
counsel from arguing before the jury a case already settled in the minds
of the court, by a train of judicial determinations in similar cases, and
in which they left both law and fact to the determination of the jury;
directing them as to the law upon the subject. He was warranted in his
opinion, because the gentleman from Virginia, in illustrating some of his
positions, had cited the case of libel as decided by Lord Mansfield, and
Mr. Fox’s celebrated declaratory bill, which grew out of that decision.
What analogy has that case to the case in question? Lord Mansfield
decided that in the case of a libel, all the jury had to do was to find
the fact of publication or not, and that whether when published it were
criminal or not, they had no right to determine, and thus withdrew
the question of law altogether from their decision. This was justly
regarded as a gross violation of that principle of the criminal law of
that country, which invests the jury with the right to decide as well
on the law as on the fact. This principle I fully acknowledge, and if
the court in the case of Fries had deprived the jury of that right, and
withdrawn the question of law from them, there might be some foundation
for this resolution. But, according to the statement of the gentleman
from Pennsylvania, the question of law and fact were both submitted to
the jury, with the instructions of the court on the legal question. He
had always been taught to believe that the court were the proper organ
through which the law was to be communicated to the jury, though he
did not deny but the jury had the right which they should cautiously
exercise, but which they would always exercise, when they discover an
inclination in the court to oppress the citizen or exculpate the guilty,
to reject the direction of the court and decide for themselves.
But the complaint is, that the court denied to the counsel the privilege
of arguing the law before the jury. Mr. DENNIS said he believed the court
possessed a power of this nature, to be regulated by a sound discretion.
If the court should believe that a question had been put at rest by a
long train of judicial decisions, such as was the case in this instance,
they not only have the right, but it becomes their duty to prevent a
useless consumption of time, and to prohibit the counsel from agitating
the question. Indeed it is indelicate in the counsel to impress on the
jury an opinion of law contrary to the known opinion of the court; nor
is there any court who will not take on themselves the right of checking
counsel, in an attempt to mislead the jury on a question of law. Such was
the practice of the courts in Maryland, and in that country from which we
derive all our notions of jurisprudence.
But though he did not conceive that there was any ground for impeachment
in the statement of the gentleman from Pennsylvania, yet he knew that
this discussion would produce a vague and undefined censure, which
he believed the judges in question ought to have an opportunity of
repelling. He therefore moved the following amendment, by way of preamble
to the resolution:
Whereas information has been given to the House by one of
its members, that, in a certain prosecution for treason on
the part of the United States against a certain John Fries,
pending in the circuit court of the United States in the State
of Pennsylvania, Samuel Chase, one of the Associate Justices
of the Supreme Court of the United States, and Richard Peters,
district judge for the district of Pennsylvania, by whom the
said circuit court was then holden, did inform the counsel for
the prisoner, that as the court had formed their opinion upon
the point of law, and would direct the jury thereupon, the
counsel for the prisoner must confine their argument before
the jury to the question of the fact only; and whereas it is
represented, that, in consequence of such determination of
the court, the counsel did refuse to address the jury on the
question of fact, and the said John Fries was found guilty
of treason, and sentenced by the court to the punishment in
such case by the laws of the United States provided, and was
pardoned by the President of the United States:
_Resolved_, That a committee be appointed to investigate the
truth of the said allegations, and to report a statement of
facts in the case aforesaid, with their opinion thereupon,
whether the said Samuel Chase and Richard Peters, or either of
them, have so conducted themselves on the trial aforesaid as to
render necessary the interposition of the constitutional powers
of this House.
This amendment embraces all the facts stated by the gentleman from
Pennsylvania, points out a specific charge as the foundation of the
proceeding, and yet, when attached to the resolution, gives to the
committee the power of general inquiry.
We are told that the facts have been stated by a member on the floor,
and there is no reason for stating them in the resolution. Will the
statement of the gentleman from Pennsylvania appear on your journals,
and how will it hereafter be known that any fact was stated as the
foundation on which to erect a committee with general inquisitorial
powers? Posterity will only see the resolution, and to them it will be a
precedent which will justify the creation of a committee of inquiry into
the official conduct of any officer, without the allegation of a single
fact, whenever a member may choose to be of opinion that a vexatious and
expensive proceeding shall be instituted. It was therefore that he wished
to resist the principle, and for that purpose moved the amendment.
Mr. HUGER said he had before stated, and he now repeated, that he was not
averse to an investigation; but he did not consider himself bound to vote
for a resolution so general and vague. If the amendment of the gentleman
from Maryland were adopted, he should vote for the resolution.
Mr. NICHOLSON moved to amend the amendment, by striking out the whole of
it after the word “Whereas,” and by inserting--
“Members of this House have stated in their places that they
have heard certain acts of official misconduct alleged against
Samuel Chase, one of the Associate Justices of the Supreme
Court of the United States, and Richard Peters, judge of the
district court of the district of Pennsylvania.”
Mr. HUGER had no objection to the insertion of the last amendment, but he
had to striking out the first. He therefore called for the yeas and nays
upon striking out.
The question was then taken by yeas and nays upon striking out, and
carried--yeas 79, nays 41, as follows:
YEAS.--Willis Alston, jun., Nathaniel Alexander, David Bard,
Geo. Michael Bedinger, Phanuel Bishop, William Blackledge,
Adam Boyd, John Boyle, Robert Brown, Joseph Bryan, William
Butler, George W. Campbell, Levi Casey, Joseph Clay, John
Clopton, Jacob Crowninshield, William Dickson, John B. Earle,
Peter Early, Ebenezer Elmer, John W. Eppes, Wm. Eustis,
William Findlay, John Fowler, James Gillespie, Edwin Gray,
Andrew Gregg, John A. Hanna, Josiah Hasbrouck, William Hoge,
James Holland, David Holmes, Walter Jones, William Kennedy,
Nehemiah Knight, Michael Leib, John B. C. Lucas, Matthew Lyon,
Andrew McCord, David Meriwether, Samuel L. Mitchill, Nicholas
R. Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas
Newton, jun., Joseph H. Nicholson, Gideon Olin, Beriah Palmer,
John Patterson, Oliver Phelps, John Randolph, jun., Thomas M.
Randolph, John Rea of Pennsylvania, John Rhea of Tennessee,
Jacob Richards, Erastus Root, Thomas Sammons, Thomas Sanford,
Ebenezer Seaver, Tompson J. Skinner, James Sloan, John Smilie,
John Smith of Virginia, Richard Stanford, Joseph Stanton, John
Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Philip Van Cortlandt, Isaac Van Horne, Joseph B. Varnum,
Matthew Walton, John Whitehill, Richard Wynn, Joseph Winston,
and Thomas Wynns.
NAYS.--Simeon Baldwin, Silas Betton, John Campbell, William
Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh
Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas
Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger
Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel
Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston,
Thomas Lowndes, Nahum Mitchell, James Mott, Thomas Plater,
Samuel D. Purviance, Joshua Sands, John Cotton Smith, John
Smith of New York, William Stedman, James Stephenson, Samuel
Taggart, Samuel Taney, Samuel Thatcher, George Tibbits, Killian
K. Van Rensselaer, Daniel C. Verplanck, Peleg Wadsworth, Lemuel
Williams, and Marmaduke Williams.
The question was now taken on inserting the amendment of Mr. NICHOLSON,
and carried.
The question was then put upon agreeing to the amendment thus amended.
Mr. PURVIANCE said he could not vote for it because it did not state the
fact. It declared that members of the House had stated that they had
heard of official acts of misconduct of both the judges, when but one act
had been charged against Judge Peters.
Mr. J. RANDOLPH observed that he perceived no reason for the preamble.
He hoped therefore it would not be agreed to. General inquiry was his
object, and, as going to limit it, he was against the preamble.
Mr. ELLIOT said that, had the amendment of the gentleman from Connecticut
prevailed, he might have reconciled it to his mind to vote for the
resolution thus amended. But as it stood, he could not.
Mr. NICHOLSON remarked that when he offered the amendment, the
incorrectness suggested by the gentleman from North Carolina had not
occurred to him. To obviate this incorrectness he would move to amend the
amendment by saying “a certain act of Richard Peters.”
The SPEAKER said this amendment was not in order.
Mr. NICHOLSON said that under such circumstances he must vote against the
whole amendment.
The question being taken, the amendment as amended was lost without a
division.
When the resolution for appointing a committee of inquiry was
carried--yeas 81, nays 40, as follows:
YEAS.--Willis Alston, jun., Nathaniel Alexander, David Bard,
George M. Bedinger, Phanuel Bishop, William Blackledge, Adam
Boyd, John Boyle, Robert Brown, Joseph Bryan, William Butler,
Levi Casey, Joseph Clay, John Clopton, Jacob Crowninshield,
Richard Cutts, William Dickson, John B. Earle, Peter Early,
Ebenezer Elmer, John W. Eppes, Wm. Eustis, William Findlay,
John Fowler, James Gillespie, Edwin Gray, Andrew Gregg, John
A. Hanna, Josiah Hasbrouck, William Hoge, James Holland, David
Holmes, John G. Jackson, Walter Jones, Wm. Kennedy, Nehemiah
Knight, Michael Leib, John B. C. Lucas, Matthew Lyon, Andrew
McCord, David Meriwether, Nicholas R. Moore, Thomas Moore,
Jeremiah Morrow, Anthony New, Thomas Newton, jun., Joseph
H. Nicholson, Gideon Olin, Beriah Palmer, John Patterson,
Oliver Phelps, John Randolph, jun., Thomas M. Randolph, John
Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards,
Erastus Root, Thomas Sammons, Thomas Sanford, Ebenezer Seaver,
Tompson J. Skinner, James Sloan, John Smilie, John Smith of
Virginia, Richard Stanford, Joseph Stanton, John Stewart, David
Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip
Van Cortlandt, Isaac Van Horne, Joseph B. Varnum, Daniel C.
Verplanck, Matthew Walton, John Whitehill, Marmaduke Williams,
Richard Wynn, Joseph Winston, Thomas Wynns.
NAYS.--Simeon Baldwin, Silas Betton, John Campbell, William
Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh
Cutler, Samuel W. Dana, John Davenport, John Dennis, Thomas
Dwight, James Elliot, Thomas Griffin, Gaylord Griswold, Roger
Griswold, Seth Hastings, David Hough, Benjamin Huger, Samuel
Hunt, Joseph Lewis, jun., Thomas Lewis, Henry W. Livingston,
Thomas Lowndes, Nahum Mitchell, Samuel L. Mitchill, James Mott,
Thomas Plater, Samuel D. Purviance, Joshua Sands, John Cotton
Smith, John Smith of New York, Wm. Stedman, James Stephenson,
Samuel Taggart, Samuel Tenney, Samuel Thatcher, George Tibbits,
Killian K. Van Rensselaer, Peleg Wadsworth, and Lemuel Williams.
_Ordered_, That Messrs. JOHN RANDOLPH, jun., NICHOLSON, JOSEPH CLAY,
EARLY, ROGER GRISWOLD, HUGER, and BOYLE, be appointed a committee
pursuant to the said resolution.
MONDAY, January 9.
Another member, to wit, WILLIAM HELMS, from New Jersey, appeared,
produced his credentials, was qualified, and took his seat in the House.
WEDNESDAY, January 11.
_Virginia Yazoo Company._
On a motion made and seconded,
“That the agent or agents of the Virginia Yazoo Company,
‘claimants of compensation under the late cession and
convention between the State of Georgia and the United States,
and the acts lately passed by Congress thereon, as purchasers
of land in the Mississippi Territory, in the year one thousand
seven hundred and eighty-nine, from the said State of Georgia,’
be heard in person, or by counsel, at the bar of the House, on
Monday next:”
The question was taken thereupon, and resolved in the affirmative--yeas
61, nays 49.
On a motion made and seconded that the House do come to the following
resolution:
_Resolved_, That the South Carolina Yazoo Company be heard by
their agent, on Monday next, at the bar of the House:
And the said motion being twice read at the Clerk’s table, a motion was
made and seconded to amend the same, by striking out all the words from
the word “Resolved,” in the first line, to the end of the motion, and
inserting, in lieu thereof, the following words: “That this House will,
on Monday next, hear all the agents of the different companies claiming
lands south of the State of Tennessee, who may choose to speak at the bar
of this House.”
And on the question that the House do agree to the said amendment, it
passed in the negative. And the main question being taken that the House
do agree to the said motion, as originally proposed, it was resolved in
the affirmative--yeas 67, nays 46.
FRIDAY, February 3.
_Georgia Militia Claims._
The House went into Committee of the Whole on the report of the Committee
of Claims, on the petition of John M. Randolph and Randolph McGillis,
which is unfavorable to the prayer of the petitioners.
The petitioners claim their pay as militiamen, called out in the State
of Georgia for the protection of that State against the Indians. They
allege, that, being called out under the authority of the Government of
the United States, the General Government is bound to compensate them and
the other men called out for their services.
The Committee of Claims report that the petitioners are to look for
compensation to the State of Georgia, who, by the articles of cession
recently concluded, had agreed to receive one million two hundred and
fifty thousand dollars, in full for all demands for military service.
[This debate, though nominally on a private claim, retains a
surviving interest from its historic details, its connection
with the Georgia cession, its references to the Yazoo
speculation, and its dependence upon the question of protection
between the Federal Government and a State.]
Mr. EARLY.--Mr. Chairman: I cannot but be sensible of the difficulty
which opposes itself to the present claim after an unfavorable report
from the committee to which it was referred. And it is impossible not
to discern that this difficulty is increased by the opinion of the
Attorney General upon the construction of the articles of cession
from Georgia to the United States. But as to that opinion, it may not
be improper to observe, that so far as it applies to the case of the
claimant, it is repelled by the positive certificates of two of the
Georgia Commissioners, gentlemen of veracity and legal talents equal
with himself. To give to the opinions, or rather the “private ideas and
recollections” of that officer, the weight and authority which have
been thereunto attached by the Committee of Claims, would be to adopt
in practice a principle at war with the maxims of all free Governments;
it would be to constitute the framer of an instrument the judge of its
construction. This is the essence of despotism. But I apprehend that
neither the principle laid down in that opinion nor the facts therein
stated do bear upon the case; but that the facts do negatively prove that
the claims now under discussion were not included in the compensation
stipulated to Georgia in the articles of cession and agreement. The
principles are, that the term “territory,” as used in the instrument,
meant not only the territory ceded, but that retained. Now, Mr.
Chairman, as I cannot possibly comprehend what bearing this has upon the
question before us, I must be excused if I leave the Attorney General in
the undisturbed enjoyment of his premises and pursue the discussion.
So early as the year 1787 the State of Georgia, being sorely distressed
by the violence of the Indians, passed a law directing the establishment
of two regiments of troops, to serve until a restoration of peace
could be secured. But the enlistments not having been completed, in
the following year a law was passed holding out additional inducement,
and in the year 1789 the present federal constitution having gone into
operation, and the rights of peace and war thereby vested exclusively
in the General Government, the Legislature of Georgia passed a law
discharging the troops which had been enlisted, and declaring the rate of
pay which they should receive. For this pay certificates were directed to
be issued, and these certificates constitute a debt unredeemed to this
day. [Mr. E. turned to the several laws above referred to, and read from
each extracts as proofs of his statement.] Here, Mr. Chairman, you have
unfolded a debt, which, without the least violence to construction, fills
up the description given in the articles of cession. Here are expenses
incurred by the State totally distinct from and unconnected with the
claims now under discussion. It is important also to observe, that every
attempt made by the State of Georgia prior to the cession to dispose
of her vacant territory, appears from the face of the acts to have
been dictated by a view of discharging the public obligations to those
troops. No less than three attempts at a disposition of her territory
were made prior to the cession. The first was an offer to cede to the
General Government, in 1788, provided Congress would pay the expenses
which had then accrued in defending the frontiers, and would yield the
wonted protection in future at their own expense. This was rejected. In
the following year a law passed for disposing of a part of the territory
to companies, notoriously with a view to raise money wherewith to meet
the same engagements. This also failed, for causes which have been amply
unfolded to the House on another occasion. The next attempt was in the
year 1795, which, in the very title of the law, is expressed to be made
to meet the particular engagements to the same soldiery. Of the result of
this transaction the House is also possessed. The last attempt was by the
articles of cession. Thus it appears that in no instance were the present
claims ever thought of as a debt to be met by the State of Georgia out of
the proceeds of her unlocated lands, but that the expenses incurred by,
and the engagements made to the troops in the years 1787, 1788, and 1789,
were uniformly the moving cause toward a disposition of her territory.
The Committee of Claims however, sir, notwithstanding they have
throughout their report endeavored to rest upon the Attorney General
the responsibility of the construction given to the cession, have at
the same time erected a pillar of their own to support it, where they
saw it must fall. They well perceived that all reasoning upon the
subject was idle, unless one principle could be established; this they
have boldly advanced to, and, instead of proving, have assumed as the
groundwork of their whole superstructure. It is, that the State was bound
in the first instance to compensate the soldiery, notwithstanding the
ulterior responsibility of the General Government. From this they infer
that the State had a right and by the cession did exercise the right
of exonerating the latter Government. Now, Mr. Chairman, grant to the
Committee their premises and there is an end to the question between us;
their consequences must result. But, sir, I must supplicate their pardon
if I refuse my assent to their position until my judgment is convinced.
And I must be pardoned for saying that the reasoning to which they have
resorted for the purpose of proving it, strikes my mind as the reverse
of sound; that it proves too much to prove any thing. It is, that the
State Government is in the first instance liable, because the troops
were called into the field by the State Executive. This reasoning, Mr.
Chairman, would go to prove that in every instance in which militia have
been called into the service of the General Government, the States from
which they were drafted were in the first instance liable for their
compensation, because, in every case which has taken place, they were
called into the field by State Executives. The truth is, sir, that in
every case the orders have issued from the Executive of the General
Government to that of the State Government, and that orders have from the
latter issued in consequence thereof, for making the requisite drafts;
so that the troops engaged in service under the immediate directions
of the State, but under the mediate directions of the United States.
This was the course pursued in both the insurrections in the State
of Pennsylvania; it was the course in the State of South Carolina in
relation to Indian invasion, at the same period at which the services
were performed in Georgia for which we are now claiming compensation.
It was the same course the other day with the troops ordered down the
Mississippi to occupy New Orleans and its dependency. In all these cases
the troops were compensated by the General Government in the first
instance. It never entered the heart of any man that the States from
which the drafts were made, were in the first instance liable, and that
resort must afterwards be had by the State Government against the United
States. I have always been taught that precedents established principles,
but it now seems that the Committee of Claims in the profoundness of
their researches have discovered that by assuming premises, principles
may be established in the face of a uniform current of precedents.
There are, Mr. Chairman, two modes marked out in the constitution in
which the militia may be called into service. The first is a case where
from necessity the war attribute of sovereignty is left in the individual
States. It is the case of invasion or such imminent danger thereof as
will not admit of delay. The other mode is that of issuing orders from
the Executive of the General, to the officers of the State Governments.
This is the usual method by which the militia of the States are drawn
into the service of the United States. And it is of importance to observe
here, that the act of Congress which was intended to give effect to
the constitutional powers of the General Government to “call forth the
militia,” authorizes the President “to issue his orders for that purpose
to such officer or officers of the militia as he shall think proper.”
For, inasmuch as there can be no other difference in a military point of
view, and for military purposes, between the Governor of a State and the
next highest military officer, than the difference of rank, the one being
first, the other second, in command, it must follow that if the militia
are to resort for pay to the State Governments because their orders have
passed through the Governor, they must also resort to the same source in
case their orders should pass through the second or third in command; the
principles upon which the committee found their reasoning apply equally
to both cases. The soundness of conclusions drawn by the committee is,
therefore, not merely questionable, but to me it appears not difficult to
prove that the conclusions themselves are at war with the most obvious
principles of justice.
I hold it, sir, accordant with the most common rules by which individuals
are regulated in a state of society, that when service is performed
the party for whom it was performed is the only one responsible for
the compensation. The rule applies with equal force to the case of
Governments, who are moral agents. Happily, Mr. Chairman, there is no
difficulty in ascertaining the party for whom the service was performed
in the case under discussion. Fortunately for the States in general, it
is made the constitutional duty of the General Government to “protect
each of them against invasion.” And fortunately for the State of Georgia
in the present instance, there is the recorded sanction of the Executive
of the Union, couched in the following words--“If the information which
you may receive, shall substantiate clearly any hostile designs of the
Creeks against the frontiers of Georgia, you will be pleased to take the
most effectual measures for the defence thereof, as may be in your power,
and which the occasion may require.” If, therefore, the principles and
reasoning of the committee be correct, it must follow that troops engaged
in performing the constitutional duty of the United States must resort
for their compensation in the first place to the States. To premises
leading to such conclusions, I will not, cannot yield assent.
Mr. Chairman: It is recollected that when this subject was under
discussion at the last session of Congress, a distinction was taken
between the situation of troops called into the field by order from the
General Government, and those called out by the State Executive in virtue
of authority given by the former. But, sir, I humbly apprehend that such
a distinction is one of words, and not of principles. And I must here
profess to the honorable Committee of Claims my profound acknowledgment,
for furnishing me with an idea, and a mode of phraseology most suited to
my purpose. They, in their report, have told the House that the “manner
of exhibiting” the demand assuredly cannot change its nature. Now, sir,
I repeat, in nearly their own words, that the manner of calling out
the troops, cannot change the nature of the service. It cannot change
the United States service into State service. And indeed the Committee
of Claims themselves have given us the strongest proofs, that with
them the distinction had no weight. For of claims which have been so
contradistinguished in the reports from the War Department, there were
committed to them both descriptions; but they draw no difference. Indeed,
their principles would admit of none.
But, sir, if a difference in principle did exist between claims of the
two kinds, it would prove nothing in the present case, because the
difference does not here appear in fact; and I cannot but consider it as
one of the unfortunate circumstances attendant upon our claims, that the
epithet _unauthorized_, has, without foundation, been attached to them,
because, as was supposed, they were founded upon services not specially
ordered. The fact is, Mr. Chairman, that they were not only _authorized_,
but they were _ordered_, by the General Government. I beg leave to
compare the tenor of the orders for drafting the militia in Georgia,
with the orders issued in other cases, about which no difficulty ever
occurred. The words used in the Georgia case are, “you will be pleased
to take the most effectual measures for the defence thereof,” &c. What
are the words used in the orders issued to the governors of four States,
to march militia to quell the insurrection in the Western counties of
Pennsylvania? “I have to request your Excellency,” &c. The words are the
same in every other instance in which militia have been ordered into
the service of the United States. They are the same which were used for
enlisting the one hundred horse and one hundred foot to serve upon the
frontiers of Georgia, about whose compensation there never has, until
the present moment, been any difficulty; they are the same under which
several corps were raised in the same quarter, whose services have long
since been remunerated.
Let us here pause for a moment, and view the extent to which we shall be
led by adopting the report. Sir, the principles of that report, and the
application therein made of those principles, lead to a conclusion from
which, if I mistake not, every gentleman upon this floor will revolt.
Sure I am, every State in the Union will reject it with horror. What,
sir! has the great, the all-important right of peace and war been yielded
up by the States to the General Government, and yet the States bound to
compensate for war services? It is no reply to this conclusion to be told
that the States are only liable in the first instance; for it is then
completely within the power of the General Government, by _withholding_,
to make them bear the burden altogether. And to that may be added, that
the expenditure might frequently be of such magnitude as to create
extreme oppression in the imposition of taxes, and, in some States, might
produce general ruin and bankruptcy.
Mr. J. C. SMITH observed that the Committee of Claims, in submitting to
the House the reports then before them, had not been influenced by the
magnitude of the sum claimed for services. The simple question considered
by them, was whether compensation had, or had not been rendered for those
services. The decision of this question depended on another question,
whether from the nature of our Government, the State of Georgia was to
be considered as, in the first instance, liable for the satisfaction
of these claims. If this should be admitted, he thought the proper
construction to be placed on the articles of cession was extremely plain.
There are two ways in which the militia of a State may be called out by
the Executive of the United States. The first is by a direct detachment
of any portion of the militia. It was not necessary, in any instance,
for the Government of the United States to call on the Executive of a
State for this purpose. It was in their power directly to call into the
public service a brigade or other division. This is one course, which
may be pursued, and in this case it is admitted that the soldiers are
soldiers of the United States, and that for their compensation they are
to look to no other Government than that of the United States, in the
first instance. The other course is that where a requisition is made by
the General Government on the Executive of a State. What is the state of
things in this case? It must be presumed that the citizens of a State,
thus called into service, are to look to their own State for compensation
in the first instance, though he admitted that the General Government was
in the last resort responsible. They are to look, in the first instance,
to the State Government, for this obvious reason: The Governor of a
State is not amenable to the General Government; and he consequently
cannot be punished for exceeding their orders. Is that Government then
bound at all events to pay the expenses incurred in consequence of the
orders of the State Executive, when they may be in direct violation of
the orders of the General Government? It is a clear position then, that
when the militia are called out by the Executive of a State they are to
look to the State in the first instance. Application may be made to the
General Government in the first instance, and if there shall have been no
disobedience to its orders it may make payment; but, put the case of the
orders of the General Government being disobeyed, will it be contended
that it will be obliged to remunerate services rendered in opposition to
its commands?
Contemplating the subject in this view, it must be admitted that the
militia are in the first instance to look to the State Government, which
may make a compromise with the General Government.
The second question is, what is the nature of the compromise made in this
case? The articles of cession purport to be [Mr. SMITH here quoted the
beginning of these articles.]
It may here be proper to premise that Georgia is the first State in the
Union that has ever received a compensation for her territory transferred
to the United States. That territory was acquired by the joint exertions
and blood of the citizens of all the States. Under such circumstances it
becomes necessary to inquire into the compensation stipulated to be given
by the United States to the State of Georgia; a compensation not given
for the land, but for expenses incurred by Georgia in relation to it.
The Attorney General tells us that these expenses were incurred for the
portion surrendered to the United States, as well as for the whole State.
It behooves the gentleman from Georgia to show the precise expenses
incurred. Were this once proved it would remove all doubt. The
Commissioners who formed the articles of cession, it may be presumed, had
before them the whole materials; and it must be inferred that the claims
now made were fully considered by them, and were, so far as they are
just, included in the settlement. Mr. S. concluded his remarks by saying
he felt no uncommon tenacity or zeal against the claims; but that he
would be very willing to allow them in case it should be satisfactorily
shown that they were not already compensated.
Mr. MERIWETHER and Mr. HOLLAND opposed the report, when a vote was passed
against the claims--yeas 73, nays 28; when the House, on the motion of
Mr. J. CLAY, postponed the further consideration of the subject till
Monday next.
MONDAY, February 13.
_Public Roads._
On motion of Mr. JACKSON, the House took up the bill making provision for
the application of the money heretofore appropriated to the laying out
and making public roads leading from the navigable waters emptying into
the Atlantic to the Ohio river.
Mr. J. CLAY moved to postpone the bill to the 1st Monday of December.
Lost--yeas 41, nays 40.
Mr. R. GRISWOLD moved so to amend the first section, as to vest the
President with a general power to appoint three Commissioners to
designate a route, to be reported to Congress for their ultimate
decision; which motion, after a short conversation, was agreed to by a
considerable majority.
Mr. LYON offered a motion for empowering the President to designate the
routes. Lost, without a division.
The committee rose and reported the bill with several amendments, in
which the House concurred, and ordered the bill to a third reading on
Wednesday.
TUESDAY, February 14.
_Importation of Slaves._
The following motion, offered by Mr. BARD, was taken into consideration
in Committee of the Whole:
“_Resolved_, That a tax of ten dollars be imposed on every
slave imported into any part of the United States.”
On motion of Mr. JACKSON, it was agreed to add after the words United
States, “or their territories.”
Mr. LOWNDES.--I will trespass but a very short time upon the attention
of the House at this stage of the business, but as I have objections to
the resolution, it may be proper that I should state them now. I will
do so briefly, reserving to myself the privilege of giving my opinion
more at length when the bill is before the House, should the resolution
be adopted, and a bill brought in. I am sorry, Mr. Speaker, to find
that the conduct of the Legislature of the State of South Carolina, in
repealing its law prohibitory of the importation of negroes, has excited
so much dissatisfaction and resentment as I find it has done with the
far greater part of this House. If gentlemen will take a dispassionate
review of the circumstances under which this repeal was made, I think
this dissatisfaction and resentment will be removed, and I should indulge
the hope that this contemplated tax will not be imposed. Antecedent to
the adoption of the constitution under which we now act, the Legislature
of South Carolina passed an act prohibiting the importation of negroes
from Africa, sanctioned by severe penalties. I speak from recollection,
but I believe not less than the forfeiture of the negro and a hundred
pounds sterling for each brought into the State; and this act has been
continued in force until it was repealed by the Legislature at its last
session. This long interdiction, I think, manifests, on the part of the
government of the State, a disinclination to the trade, and, had we
received the aid from Congress which was necessary to enforce the act,
the repeal which is now complained of would never, in my opinion, have
taken place. But, Mr. Speaker, the State was unable to enforce its laws.
It had given up to the Government of the United States all revenues
derived from foreign imposts, and was, therefore, necessarily divested
of the means of preventing the introduction into the country from sea of
whatever the excitements to gain might allure it into. The geographical
situation of our country is not unknown. With navigable rivers running
into the heart of it, it was impossible, with our means, to prevent our
Eastern brethren, who, in some parts of the Union, in defiance of the
authority of the General Government, have been engaged in this trade,
from introducing them into the country. The law was completely evaded,
and for the last year or two, Africans were introduced into the country
in numbers little short, I believe, of what they would have been had the
trade been a legal one. Under these circumstances, sir, it appears to me
to have been the duty of the Legislature to repeal the law, and remove
from the eyes of the people the spectacle of its authority being daily
violated.
I beg, sir, that from what I have said, it may not be inferred that I
am friendly to a continuation of the slave trade. So far from it that,
without adverting to considerations by which I know other gentlemen
are influenced, I think the period has passed when the interests of
the country required, and her policy dictated, that an end should be
put to it. I wish the time had arrived when Congress could legislate
conclusively upon the subject. I should then have the satisfaction of
uniting with the gentleman from Pennsylvania, who moved the resolution.
Whenever it does arrive, should I then have a seat in this House, I will
assure him I will cordially support him in obtaining his object. But, Mr.
Speaker, I cannot vote for this resolution, because I am sure it is not
calculated to promote the object which it has in view. I am convinced
that the tax of ten dollars will not prevent the introduction into the
country of a single slave. Gentlemen must be sensible of the truth of
this observation, when they are informed, and the fact is too notorious
even to be doubted, that, notwithstanding the expense and risk which
attend an illicit trade, they have been introduced in very great numbers.
Was I friendly to the trade, I should, without any hesitation, embrace
the proposition contained in the resolution, and I should consider it a
point gained of no small importance, that the Legislature of the General
Government had given a sanction to it--for I can regard the Government
deriving a revenue from it in no other light than a sanction. The
gentleman from Pennsylvania, and those who think with him, ought, above
all others, to deprecate the passing of this resolution. It appears to
me to be directly calculated to defeat their own object--to give to
what they wish to discountenance a legislative sanction; and, further,
an interest to the Government in permitting this trade after the period
when it might constitutionally terminate it. When I say that I am myself
unfriendly to it, I do not wish, Mr. Speaker, to be misunderstood; I do
not mean to convey the idea that the people of the Southern States are
universally opposed to it--I know the fact to be otherwise. Many of the
people in the Southern States feel an interest in it, and will yield
it with reluctance. Their interest will be strengthened by the immense
accession of territory to the United States by the cession of Louisiana.
Gentlemen cannot foresee what the situation of the country will be when
the period arrives when Congress may constitutionally interdict the
trade. The finances of the country, and the exigences of the times, may
be such as to prevent the Government from dispensing with any part of
its revenue. The tax, if imposed, will undoubtedly produce a revenue,
and in proportion to the amount of this revenue will be the interest of
the Government in the trade. But, Mr. Speaker, my greatest objection to
this tax is, that it will fall exclusively upon the agriculture of the
State of which I am one of the representatives. However odious it may be
to some gentlemen, and however desirous they may be of discountenancing
it, I think it must be evident that this tax will not effect their
object; that it will not be a discouragement to the trade, nor will the
introduction of a single African into the country be prevented. The only
result will be, that it will produce a revenue to the Government. I
trust that no gentleman is desirous of establishing this tax with a view
to revenue. The State of South Carolina contributes as largely to the
revenue of the United States, for its population and wealth, as any State
in the Union. To impose a tax falling exclusively on her agriculture
would be the height of injustice, and I hope that the Representatives
of the landed interest of the nation will resist every measure, however
general in its appearance, a tendency of which is to lay a partial and
unequal tax on agriculture.
Mr. BEDINGER observed, that the gentleman from South Carolina had so
fully expressed the opinions he entertained, that he should say but
little. Every body who knew his opinions on slavery might think strange
of the vote he should give against the resolution. There was not a member
on the floor more inimical to slavery than he was, still he was of
opinion that the effect of the present resolution, if adopted, would be
injurious. He should, therefore, vote against it.
Mr. BARD.--It was my wish that the question before the committee might be
taken without discussion, but, as the gentleman from South Carolina has
preferred a different course, I beg permission to offer a few thoughts on
the subject.
As to the constitutionality of the measure, I believe there can be but
one opinion. It is pretty well understood that the union of the States
was a matter of compromise; and, indeed, the language of the constitution
suggests the idea that the convention which formed that instrument, must
have had the emancipation of slaves under their consideration. They had
achieved liberty, and their object was to transmit it to posterity;
and we cannot permit ourselves to suppose that men whose minds were so
enriched with liberal sentiments, and who had so often reiterated the
sacred truth, “That all men were born equally free”--I say we cannot
suppose that they would consider slavery to be a subject unworthy their
discussion; and it appears to be equally suggested that the convention
were not all agreed to an absolute prohibition of the slave trade,
but yielded so far that a duty or tax might be imposed on the future
importation of that description of people. The question, then, is only on
the policy of laying this tax; and it appears that there can be no doubt
on this question.
The slave trade, in terms, makes African men mere articles of traffic,
and of course they must be as much a subject of commercial regulation as
any other species of foreign manufactures. The tax will be high or low,
in proportion to the price the article will bring. And if my information
is correct, a slave will bring four hundred dollars; the tax, then, is
but two and-a-half per cent., which is many degrees lower than any other
imported article pays. The tax is a general one; no State in the Union
is exempted; it will operate wherever its object can be found. It may
be that some States will pay more and some less, but it will be at the
option of any State how much, or whether it will pay any of this tax;
for it will be just as the State shall please to deal in this article of
commerce. And, on the score of uniformity, no objection can lie against
the tax--the slaves have already been the object of direct taxation,
and Vermont paid none of that tax, because she had none of that kind of
taxable property; and yet I never heard it complained of as not being
uniform. It is said the tax is impolitic, because it will not prevent the
importation of Africans into our country. This may, indeed, be the case;
and I believe it will be but a feeble check to the trade if not aided
by nobler motives. However, if any of the States engage in the trade,
the tax will have two effects--it will add something to the revenue, and
it will show to the world that the General Government are opposed to
slavery, and willing to improve their power, as far as it will go, for
preventing it. Both these ends are valuable; but I deem the latter to be
the more important one, for we owe it indispensably to ourselves and to
the world, whose eyes are on our Government, to maintain its republican
character. Every thing compared to a good name is “trash;” and it rests
with us whether we will preserve or destroy it. If our Government will
respect power only, and justify whatever it may be able to do, then will
our hands be against every man, and every man’s hand against us; and
Americans will become the scorn of mankind.
On what principles, whether moral or political, I do not know; but so it
was, that about the close of the Revolutionary war, the Quaker society
in South Carolina brought the slave trade, or perhaps slavery itself,
under their serious consideration, and declared it to be unjustifiable.
They afterwards, in 1796 or 1797, addressed Congress on the subject; but
failed in their object, and for no other reason, probably, than that the
powers of Congress did not reach it.
Some years ago the States, even those in which slaves abound most, loudly
exclaimed against the further importation of that class of people, and
by their laws prohibited their traffic. Either they did this on moral
principles or considerations of policy. In 1802, Congress stretched
out her arm to aid the State Governments against the evil they so much
deprecated, and passed a law inflicting fines and forfeitures on every
man who should be found importing slaves into the United States. What
might have been the issue of these combined exertions, or how far they
might ultimately secure their end, I cannot tell; but, as to South
Carolina, they have become nugatory; by repealing her prohibitory law she
has rejected the interference of Congress. Why that State has done so;
why she has abandoned a measure which, the other day, was considered so
much her interest, I know not, nor is it for me to offer any conjectures.
South Carolina is a sovereign State, and has a right to consult and
pursue her own interest, so far as the general good will permit; for
hitherto she may come, and no further. Every State has a right to import
slaves if it so chooses, and Congress has a right to tax all the slaves
imported; but when the powers of a State, though constitutional, operate
against the general interest, then the exercise of those powers is
politically wrong, because it is contrary to the fundamental principle of
society, the public good, which is paramount to law and the constitution
itself. And, in my opinion, the importation of slaves is hostile to the
United States: to import slaves is to import enemies into our country; it
is to import men who must be our natural enemies, if such there can be.
Their circumstances, their barbarism, their reflections, their hopes and
fears, render them an enemy of the worst description.
Gentlemen tell us, though I can hardly think them serious, that the
people of this description can never systematize a rebellion. I will
not mention facts, it is sufficient to say that experience speaks a
different language--the rigor of the laws, and the impatience of the
slaves, will mutually increase each other, until the artifices of the one
are exhausted, and until, on the other hand, human nature sinks under
its wrongs, or obtains the restoration of its rights. The negroes are
in every family; they are waiting on every table; they are present on
numerous occasions when the conversation turns on political subjects,
and cannot fail to catch ideas that will excite discontentment with
their condition. And what is to be expected from the people of this
description, but that they will some day, and especially if their
importation continues, produce a disturbance that may not be easily
quieted, or kindle a flame that may not be readily extinguished. If ten
thousand of them have been, as it is said, smuggled into the United
States, in the course of a year or two past, and if ten or fifteen
thousand of them may now be legally brought annually into our country,
for four years to come, it will hardly be imagined that the general
interest will be unaffected by such an importation.
If they are ignorant, they are, however, susceptible of instruction, and
capable of becoming proficients in the art of war. To be convinced of
this we have only to look at St. Domingo.
There the negroes felt their wrongs, and have avenged them; they learned
the rights of man, and asserted them; they have wrested the power from
their oppressors, and have become masters of the island. If they are
unarmed, they may be armed; European powers have armed the Indians
against us, and why may they not arm the negroes? And if they are already
as numerous as is consistent with safety, it must be extreme impolicy to
import more; it is to accelerate an event which we cannot contemplate
without pain.
Slavery is not only impolitic as it affects the strength and tranquillity
of the United States, but as it prevents their wealth, which can only
grow out of society where the arts, sciences, and manufactures, are
cultivated and improved. But, sir, I despise to argue on the advantages
or disadvantages of what is contrary to the genius of our Government;
what is radically unjust, and violates the principles of morality.
The Americans boast of being the most enlightened people in the
world--they certainly enjoy the greatest share of liberty, and understand
the principles of rational government more generally than any other
nation on earth. They have denounced tyranny and oppression; they have
declared their country to be an asylum for the oppressed of all nations.
But will foreigners concede this high character to us, when they examine
our census and find that we hold a million of men in the most degraded
slavery? This is nearly one-fifth of our whole population; in some of the
States nearly the half. Here, then, is a fact that must have weight to
sink our national character, in spite of volumes to support it. It is a
fact, from which foreigners will infer, that we possess the principles of
tyranny, but want the power to carry them into operation, except against
the untutored and defenceless African. If, then, we hold a consistency of
national character in any estimation, we will give every discouragement
in our power to the importation of slaves. It is in this view that the
tax contemplated by the resolution is principally to be considered, and
only incidentally as matter of revenue.
But, sir, I presume, on permission, to say, that the importation of
slaves is in direct contradiction to the principles of morality. On these
principles the Constitution of the United States is founded; on them
every law ought to be founded; otherwise legislation will progress in the
dark, and every step deviate still more from its true direction. “Do unto
others as you would that others should do unto you,” is a law paramount
to all human institutions; it is the fundamental law of human nature, of
Christianity, and of every rational Government; it is a law which we wish
all men to respect in their dealings with us; and it is a law which every
man confesses he ought to observe, and, in spite of all the sophistry of
depravity, must acknowledge himself subject to its cognizance. I need
not, nor will I, ask if we have observed this law as to the Africans; for
it must be obvious to every man that it is not possible to violate it in
a greater degree than we have done towards that unfortunate and wretched
people.
But, notwithstanding all the information our country enjoys, numbers
in the Eastern States have been embarked, for some years past, in the
cruel traffic of slaves, and smuggling them into other States. And it
is to be feared that many of them are, at this moment, preparing means
to stimulate the barbarous tribes of Africa to war against each other;
mutually to torture every human feeling; to violate the strongest ties
of nature and affection; to tear the husband from the wife, and the
wife from the husband; the parent from the child, and the child from
the parent; and are coolly and deliberately forging irons, that they
may have the infernal pleasure of coolly and deliberately riveting them
on the unfortunate men, women, and children, who may fall into their
hands. Such an enterprise, such a traffic as this, must affect our
national character; it is self-evidently wrong, and, at first view, must
receive the disapprobation of every disinterested man. The genius of our
constitution, the mildness of its administration, and the prevailing
sentiment of the nation, must sanction every measure to discourage the
further admission of a people whose numbers already excite most painful
sensations. In a word, the tax is constitutional; no article can bear a
tax better than the one here proposed; it is a uniform tax, and justified
on the ground of sound policy; and so far as it tends to discourage the
slave-trade, it is supported by every principle of virtue. If I have
uttered a word offensive to any member of the House, it will not be
attributable to design, but to an honest solicitude to promote the honor
and interest of our country.
Mr. BEDINGER said he differed widely, as to the effects of this motion,
from the gentleman who had just spoken. He was as hostile to the
slave-trade as any man in the Union; and if he could believe that the
imposition of a tax of ten dollars upon every imported negro would check
the importation, he would vote for it. But he believed the resolution
would have a different effect, and would rather sanction than discourage
the trade. In point of revenue, the tax was of little consideration.
Suppose a thousand slaves to be imported monthly, the amount of the tax
would be about $100,000 a year; which in four years, at the expiration of
which Congress would have power to prohibit the trade altogether, would
amount to $400,000--a sum too trifling to be put into competition with
the adoption of any measure that went to sanction such a trade.
Mr. MACON (the Speaker) believed the resolution was not founded in good
policy. All the declamation and appeal to the passions urged in its
behalf appeared to him unnecessary and irrelevant. The avowed object of
the proposed tax was to show the hostility of Congress to the principle
of importing slaves. How could this opposition of Congress be manifested,
when it would become the duty of the armed ships of the United States,
as soon as the tax was imposed, to protect this trade, as well as all
other trade on which taxes were laid? He asked whether vessels engaged in
this trade would not, under such circumstances, possess the same right
to the protection of the Government as any other vessels engaged in any
other kind of trade? Can this House tax this trade, and refuse it the
same protection that is extended to all other trade? The question is not
whether we shall prohibit the slave trade, but simply whether we shall
tax it. Gentlemen are of opinion that the State of South Carolina has
done wrong in permitting the importation of slaves. Suppose that this is
the case. May not this measure be wrong also? Will it not look like an
attempt in the General Government to correct a State for the undisputed
exercise of its constitutional powers? It appeared to him to be something
like putting a State to the ban of the empire. It will operate as a
censure thrown on the State. To this, said Mr. M., I can never consent.
As far as the law that may be founded upon this resolution can go, it
will hold forth an evidence of the opinion entertained by Congress of
the act of the Legislature of South Carolina. I know that these ideas
may be unpopular in some parts of the Union, but I, notwithstanding,
consider them just. There does not appear to me to be any necessity for
our interposition, as, since the adoption of the constitution, no slaves
have, I believe, been permitted to be imported, and as only four years
are yet to run before Congress will be possessed of the constitutional
right of prohibiting such importation altogether. And the simple question
now is, whether for a trifling revenue, we will undertake to protect
this trade. My idea is, that those who at present go into the traffic,
have no right to claim your protection; but once legalize it by taxing
it, and they will acquire the right thereto, and will demand it. All
that has been said on the circumstances connected with the slave trade
either here or in England, and on its morality or immorality, are in my
opinion foreign to the true point involved in this debate, which is, Is
the measure contemplated by the resolution politic, or is it not? In my
opinion it is impolitic, for the reasons I have assigned, and for many
others which might be added. I shall therefore, on this ground, vote
against it.
Mr. FINDLAY was of opinion that the policy of the measure embraced by
the resolution, and nothing else, was before them. Gentlemen seemed all
to unite in their abhorrence of the slave trade; they differed only
about the means of preventing it. It was well understood that a large
majority of the Federal Convention were inimical to the slave trade. That
convention had only acted upon it in a commercial point of view. As they
considered imported slaves an article of commerce, the House possessed
the same liberty of acting with regard to them, as with regard to other
articles of trade. In some of these articles, Congress had the right of
exercising unlimited taxation; in this case, their power was limited to a
certain amount. Imported goods, on an average, were subjected to a duty
of about 20 per cent. On this subject, a difference of opinion exists as
to the propriety of making imported slaves an article of revenue. This
is the true question, and not whether we shall cast a censure upon any
particular State. It does not follow, that, because we lay a particular
tax, we censure those who pay it. Considering this, then, as an article
of trade, the tax might have been long since laid, had not all the States
prohibited the traffic. Under those circumstances, it could not be taken
up as a subject of revenue.
Mr. F. observed, that, though it might be unbecoming in the House to be
influenced by resentment against the State of South Carolina, yet it
was proper that they should be influenced by the policy of the case.
As a profitable article of commerce, it appeared as eligible a subject
of taxation as could be found, and as justly liable to taxation as any
other. As to the disgrace, which some gentlemen were of opinion would
arise from taxing it, that arose from the existence of the slave trade.
In laying the tax, we shall do all we can to discourage it; and if we do
not like to use the money derived from taxing it in the common way, we
may apply it to special objects--to ameliorate the state of slavery, or
to any other object.
Mr. F. concluded his remarks by observing, that this question being
brought forward, he could not justify himself in neglecting to embrace
the opportunity it presented of discountenancing the importation of
slaves. He considered it proper that Congress should take up the subject
as the constitution presented it to them. At a certain period they would
possess the right of prohibiting it altogether, and until then they
enjoyed the power of taxation. This being the only constitutional power
they did possess, he trusted they would exert it.
Mr. S. L. MITCHILL declared his wish that the proposition of the
gentleman from Pennsylvania (Mr. BARD) should be considered merely as a
subject of political economy. In the remarks which he proposed to offer
upon it, he should, therefore, confine himself to that object. He would,
therefore, say nothing on the immorality of a trade which deprived a
large portion of the human species of their rights. He should pass over,
in silence, every thing that might be urged to exhibit it as impious
and irreligious; and he would not utter a word on its repugnance to
the principles of our equal jurisprudence, and the spirit of our free
Government. The slavery of a portion of our species was a copious theme,
when viewed in either of these aspects; but, on the present occasion, he
was willing to waive them all. The proposition was to be considered only
in its commercial, economical, and fiscal relations; and on each of these
it would be proper to make a few observations.
It was much to be regretted that the severe and pointed statute
against the slave trade had been so little regarded. In defiance of
its forbiddance and its penalties, it was well known that citizens and
vessels of the United States were still engaged in that traffic. During
the present session, memorials had been presented to Congress praying
for exoneration from the exportation bonds, which had been given to
one of the collectors of the customs, to ensure the landing of a cargo
of New England rum in Africa, which it was not pretended to be denied
was bartered away for slaves. These voyages were said to be carried on
under the flag of a foreign nation; and the common practice, as was
alleged, was, to go to the island of St. Croix and procure Danish papers
and colors. Under this cover, the voyages were performed. To prevent
the confiscation of the vessels under the law, on conviction of being
engaged in the slave trade, it had been customary to sell that article of
property in a foreign port.
Mr. M. observed that the extent of this shocking commerce was very
considerable at this time. Some time ago, he had seen a list of the
American vessels then known to be hovering on the coast of Guinea
in quest of captive negroes. They were numerous and active, and so
fatally busy as to excite the apprehensions of the benevolent Sierra
Leone Company. In various parts of the nation, outfits were made for
slave-voyages, without secrecy, shame, or apprehension. The construction
of the ships, the shackles for confining the wretched passengers, and all
the dismal apparatus of cruelty, were attended to with the systematic
coolness of an ordinary adventure. Regardless of legal prohibitions,
these merciless men, as greedy as the sharks of the element on which they
sailed, collected their slaves along the shores, and at the factories
of Negroland, from the river Senegal to the countries of Congo and
Angola. Countenanced by their fellow-citizens at home, who were as ready
to buy as they themselves were to collect and to bring to market, they
approached our Southern harbors and inlets, and clandestinely disembarked
the sooty offspring of the Eastern, upon the ill-fated soil of the
Western hemisphere. In this way, it had been computed that, during the
last twelve months, twenty thousand enslaved negroes had been transported
from Guinea, and, by smuggling, added to the plantation stock of Georgia
and South Carolina.
So little respect seems to have been paid to the existing prohibitory
statute, that it may almost be considered as disregarded by common
consent. And, therefore, as was observed by a gentleman from South
Carolina, (Mr. HUGER,) the Legislature of that State had lately repealed
their restrictive law, and legitimated a trade which neither that
regulation of their common wealth, nor the concurrent authority of the
nation, could prevent. And it may be received as a correct general idea
on this subject, that the citizens of the navigating States bring negroes
from Africa, and sell them to the inhabitants of those States which are
more distinguished for their plantations.
Thus in spite of the spirit of our republican institutions, and the
letter of our laws, a commerce in slaves is carried on to an alarming
extent--a species of slavery peculiar in its form and character, and
unlike that which was practised in ancient or modern Europe--a kind of
servitude unheard of by the civilized world, until it was made known
among the discoveries of the Portuguese along the western coast of that
continent which reaches from Ceuta to the Cape of Good Hope. There it
seems to have been extant from time immemorial, among the barbarous
powers of a country who have eradicated all the tender relations of
society, and established in their place the forceful and ferocious
distinctions of MASTER and SLAVE. From those rude and uncivilized tribes,
did Christian people learn the lessons of negro slavery. Under such
instructors, and with such examples before them, have the Europeans and
their descendants carried those savage customs of Africans into the
New World, and most unfortunately tainted with them the manners and
ordinances of a more refined race of men. For a delineation of this
peculiar state of society, in its native regions, the world is much
indebted to the undaunted enterprise of Mr. Parke; as, for its baneful
effects upon the white nations who have adopted it, they will long
remember the disclosures of Mr. Wilberforce, and the researches of Mr.
Clarkson.
This doleful traffic it was not in the power of Congress to prevent by
any present regulations. By the 9th section of the first article of
the constitution the power of admitting such persons as they please
is reserved to the States, until the year 1808. South Carolina has
authorized the importation of negro slaves from Africa. This Congress can
neither prohibit nor punish. But the National Legislature can exercise
the authority granted by the same paragraph of the constitution, “of
imposing on such importation a tax or duty not exceeding ten dollars for
each person.”
There could be no doubt of the power of Congress to declare and levy such
an impost on imported slaves for four years to come. The only question
therefore was, whether it would be good policy to do so? Mr. MITCHILL
contended that it would. On this point he replied to a gentleman from
South Carolina, (Mr. LOWNDES,) who had argued that such a tax would
discourage agriculture. He contrasted the cultivation of lands by the
labor of freemen, with the more expensive management of them by slaves.
He compared the husbandry of the Northern and Middle States, with the
rural economy of the South. He examined in detail the moderate profits of
a plantation on which bread, corn, grass, and live stock, were raised,
and the enormous income derived to the proprietor of an estate employed
in the culture of tobacco, rice, cotton, and sugar. He examined the
smaller expense of feeding, clothing, and housing laborers in warm
than in cold climates. It has been computed by men of observation,
that a working slave on a cotton plantation would, besides supporting
himself, clear for his master a net sum of two hundred dollars a year.
On the average course of crops, where the plants were not attacked by
the cherille, this estimate was considerably below the mark. And on this
conviction he believed there was no important article whatever that would
bear an impost so well.
Mr. M. then replied to an argument of the gentleman from North Carolina,
(Mr. MACON,) that the imposition of the tax would be a recognition of
the right to trade in slaves, and bind the nation to protect it with
the force of the navy. He considered slavery already recognized in many
of the States, and permitted by the constitution. It was a fact that it
did exist, and Congress could not put an end to it. But this body might
interpose its authority, and discountenance it as far as possible; and by
laying the duty as high as the constitution permitted, a very desirable
addition would be made to the revenue. Two hundred thousand dollars might
be computed to be derived from this sort of merchandise imported into
the country. Nor would Congress be bound to protect the African commerce
on the high seas; the existing statute would be in force against it; the
trade would still be unlawful as far as the power of Congress extended.
And under the proposition now under debate, this species of traffic would
be so far from receiving encouragement, that it would be punished in
cases where Congress could punish it, and taxed in the cases to which the
power to punish it did not extend.
He then delineated the wretched condition of a man subdued by fraud or
force, deprived of the exercise of his will and judgment, subjected to
the dominion and caprice of another, robbed of his rights and privileges,
divested of moral power and agency, degraded from the rank of a human
being, and brutalized into a _chattel_--a _thing_--and divested of the
character of a _person_. In this point of view, such articles, bought and
sold publicly in the market, were to be considered as mere merchandise,
as working machines, or animals of labor? Distressing as the recollection
was to every sympathizing or patriotic heart, it was useless to dwell
upon it, as it was beyond our reach to grant relief. He would therefore
treat it strictly as a case of foreign merchandise heretofore admitted
free, but upon which it was now intended to impose a duty. For his own
part, he should be glad if it could be laid, _ad valorem_, upon the price
of the article. But, as the matter was circumstanced, there was no other
method that could be adopted than to impose it, _per capita_, upon the
individual persons imported. By laying the tax, he would imitate the ways
of Divine Providence, and endeavor to extract good out of evil.
Concluding thus that the tax was constitutional, that the subject would
bear it, and that it would be a seasonable and proper expression of the
Congressional sentiment on the subject. Mr. M. proceeded to show what an
abundance of excellent purposes could be answered by $200,000 collected
annually for four years.
In the course of his remarks, Mr. M. said, he had endeavored to avoid all
harshness of expression on a topic of a peculiarly delicate nature, and
prone to excite much sensibility in debate, but considered it strictly as
a matter of political economy. In his attempt to state his reasoning to
the committee, not as an abstract speculator, but as a man of business,
he hoped he had given no offence to any gentleman by any severity of
animadversion. He looked upon negro slavery as a dark spot on some of the
members of the national body, which was spreading wider, turning blacker,
and threatening a gangrene all around--and he felt a confidence that
all friends to the health of this body would take warning by its fatal
progress in a neighboring island--which had so mortified in St. Domingo,
as to make that extreme part rot and drop off from the system to which it
once belonged.
Mr. SLOAN said he rose to observe, in a few words, that however
afflicting it might be to contemplate a certain part of the creation used
as articles of traffic, imported and exported the same as cattle, he
did not consider the morality or immorality of the practice before the
House. We must take the constitution as we find it, and as it is not in
our power to prohibit the importation, the only question to be considered
is, whether we shall most encourage the traffic, by letting the articles
imported remain free of duty or by imposing a tax upon them. This view,
he believed, presented to the mind the true question, and believing
himself that a tax would, in some degree, discourage the importation, he
should vote for the resolution.
Mr. T. MOORE.--I am astonished to hear gentlemen, who advocate the
resolution now under consideration, reprobate a traffic as horrid and
infamous, and yet wish to draw a revenue from infamy, if it is an infamy.
I differ very widely in opinion from the honorable gentleman from
Pennsylvania, who thinks that a tax of ten dollars per head will operate
as a check to the growth of this horrid traffic. If I thought it would
have that effect I would cheerfully vote for the resolution. I believe a
tax of ten dollars will not prevent the importation of a single person of
this description.
The gentleman told us that he hoped the General Government were disposed
to discourage this traffic as far as they are authorized by the
constitution. I hope this House will discourage this impolitic act of
the Legislature of one of the Southern States--not by imposing a tax on
those unfortunate people imported into the United States, but by passing
a resolution expressive of its disapprobation of all acts permitting the
importation of certain people into the United States. As the General
Government cannot prohibit this traffic before the year 1808, I hope
this House will reject the resolution under consideration, and totally
disapprove every measure which attempts to draw revenue from an act that
rivets the chains of slavery on any of the human race.
Mr. HUGER regretted that he could not see the subject in the same light
with other gentlemen who had taken a part in the debate. He had no
hesitation in saying that he had always been hostile to the importation
of slaves. Nor had he any hesitation in saying that if he had the power
he would prohibit the importation. But the situation in which they
were now placed was very different from that in which they would find
themselves in the year 1808, when they would possess the constitutional
power to prohibit the introduction of slaves. The constitution was known
to be the offspring of concession and compromise, and in no part of
it was this feature more apparent than in that which related to this
subject. When the Southern States were admitted into the Union, they
were in the habit of carrying on this species of trade, and they, by the
express language of the constitution, retained the right of continuing
it until the year 1808. Under this constitution the State of South
Carolina enjoyed the exclusive right of judging of the propriety of
allowing the trade or of prohibiting it. Had he had the honor of a seat
in the Legislature of that State, Mr. H. certainly would have opposed
the passage of this law. But he was only one of that community, standing
here as their Representative, and after the State had exercised their
undoubted right, however he might dislike the measure, it was his duty to
defend the right which they had to adopt it. That State had in truth done
no more than she possessed a constitutional right to do, and he believed
there was in that State as much true compassion as in any other in the
Union. He said he could not therefore but feel sensibly the attempt to
single out this particular State to censure her for doing that which she
had an undisputed right to do.
This was not, as contended by some gentlemen, a mere question of revenue;
but it was a question whether the Government of the Union should come
forward and condemn the act of a State, which she was fully authorized
to pass. If it is necessary to increase the revenue, let us meet that
subject fairly and fully, and not single out a particular resource of
a particular State. It is on this ground that I principally object to
this measure. The gentleman from New York (Mr. MITCHILL) has endeavored
to prove that because in the Southern States the article of slaves
produces a great profit, it is therefore proper to make it the subject
of taxation. I ask if there should be a profitable species of trade
carried on in any other part of the Union, would it be deemed politic
or just on that account to lay an additional tax upon it? The fair
principle of taxation is, that every part of the Union should contribute
equally. When any branch of trade is profitable in New York, I, though
a Southern man, rejoice at it. When the fisheries of the Eastern States
prosper, I feel highly gratified--not because those whom I represent are
particularly interested in them, but because I consider myself as a part
of the whole, and that whatever advances the interests of any part of
this Union must promote the interests of every part of it.
With regard to the moral principle involved in the slave trade, we have
nothing to do with it. On this point the Union ought to be silent. On
this subject can any thing be more pointed than the provisions of the
constitution, which, contrary to most of the other provisions, cannot
be altered but with the consent of every State in the Union. Why then
shall we cry over what we cannot prevent, like a school boy? Each State,
so long as she confines herself within the limits of her constitutional
powers, must be the exclusive judge of her own conduct; and it becomes
not one State, influenced by different feelings, habits, and interests,
to pronounce upon the conduct of another. All, so far as regards
themselves, are judges of right and wrong. We, too, have as strong a
conviction of the propriety of our measures as those who differ from us
in sentiment on this subject. We may perhaps think it more blamable to
make slaves of white people than of the blacks.
I confess I have not been able clearly to understand the ideas of the
gentleman from New York (Mr. MITCHILL.) A few days since that gentleman
offered a report, the object of which was to free raw materials from
duty. Will the State of South Carolina profit by this? No. It will
conduce to the benefit of other parts of the Union; but we shall bear the
burden: and still, on this occasion, because we derive a certain profit
from a particular description of trade, the gentleman contends for taxing
it.
Let gentlemen also consider that we are not to be hurried away by our
feelings or passions. We are sent here to attend to the business of the
nation, and, to do that as it ought to be done, we must yield to a spirit
of mutual deference and compromise, we must act fairly and impartially.
All we ask in the present case is, to do as we would be done by. We
permit the Eastern States to import German redemptioners and others.
Let them then permit us to enjoy our constitutional right of importing
slaves, especially when that right will exist but for a short time.
We do not pretend to advocate the act, but the right of our State to
pass this law. It is not to be inferred that we are friendly to the
importation. I believe, on the contrary, every Representative of the
State on this floor is hostile to it. But how can gentlemen expect that
we will disregard the voice of our own State, and especially when the
measure may have been dictated by good and substantial reasons. One good
reason may be that the importation could not be prevented, and that the
restraining law was extensively broken. This we know was the fact. If
so, may it not have been sound policy in the State to repeal it? There
may have been another reason for the measure. It may have been conceived
to have been better to import slaves directly from Africa than to be
indebted for them to New York and other States, in which they may have
been surreptitiously introduced.
The gentleman from New York (Mr. MITCHILL) observes that it is
demonstrable that, even in a pecuniary point of view, slaves are an evil;
and that they impoverish those who hold them. What does this show, but
that in the North they kept slaves as long as their interest dictated,
and then got rid of them; and that because it is a misfortune to have
them, we must be punished for our poverty. Though young, I am happy to
state that I have seen the evil decreasing in the State I have the honor
to represent. Let us alone, and we will pursue the best means the nature
of the case admits of. Interfere and you will only increase the evil;
for, whenever the Government of the Union interferes in the peculiar
concerns of a State, it must excite jealousy and a spirit of resistance.
I beg gentlemen to lay aside, on this occasion, the prejudices to which
local circumstances and peculiar State interests and feelings expose
them. When I see the lowest of the animal tribe tortured, I feel for
them; but does it follow that my interference will mitigate their pain?
Do we not all know, that by interfering between a man and his wife,
we only aggravate the difference; and do we not likewise know that
any interference between a master and his slave induces the former to
be more severe. I believe the State of South Carolina has as great an
inclination as any State similarly circumstanced, to do away this evil.
But they must, and ought to take their own course. It is a circumstance
well known, that the people to the North, who make the most noise on this
subject, are those, who, when they go to the South, first hire, then buy,
and last of all turn out the severest masters among us.
Mr. LUCAS observed that, though much had been said on the merits of the
resolution, he would take the liberty of adding a few remarks. It was
a maxim that, to justify the raising of a revenue, a Government ought
previously to stand in need of money. The pecuniary wants of a Government
were absolute and relative. The fit objects of taxation were likewise
various. Some objects bore taxation better than others. When Governments
want money to satisfy indispensable demands, taxes must be laid; and even
when they are not in immediate want of money for pressing emergencies,
there are frequently important purposes that might be answered in case
they possessed resources. On this occasion it is said that the Government
is not in want of money, that the existing revenue meets the wants of the
nation, and that, consequently, a new tax ought not to be laid. This may
possibly, strictly speaking, be correct. But to say absolutely that we do
not want money, he must deny; for he believed if they had money in the
Treasury, not required for pressing exigencies, they could find abundant
occasions for spending it to good effect. It was known that there were
many claims preferred against the Government, of a meritorious kind,
and which had been disallowed, not so much on their intrinsic merits,
as from the operation of the statute of limitations. This limitation,
said Mr. L., it is my wish should be removed, and one way of effecting
that end will be to increase our revenue, as we shall thereby be enabled
to discharge all just demands exhibited. The laying out, likewise, of
roads was an important object. One is contemplated from this place to New
Orleans. Without going further into a view of the various demands on the
Government, we shall see the occasion that exists for more money being
drawn into our Treasury.
As to the nature of the slave trade, we must, in my opinion, consider
slaves imported as so much produce or merchandise. This article ought,
in my opinion, likewise to be taxed, because the trade is odious; also,
because it affords a great profit to those who carry it on. It was
yesterday stated by a gentlemen from New York that a slave employed in
the Southern States would pay for himself in two years; that is, that a
slave that costs four hundred dollars will give a profit to the owner of
two hundred dollars a year. As, therefore, no article imported into the
United States gives a greater profit, so no article can better bear a
tax. It ought also to be taxed, because the importation of slaves into
the United States operates injuriously on the poor whites who draw their
subsistence from labor. Their comparative situation in relation to the
rich, is reduced; for if you increase the black laborers, so as to make
them work for a lower compensation, you virtually reduce the value of the
labor of the whites, and proportionally lessen the chance of a poor white
man getting employment on favorable terms. It is well understood that
competition always reduces the price of an article in the market; and
although the blacks may not, in all respects, enter into a competition
with the whites, yet, so far as respects labor, the competition will be
complete. The rich part of the community will not employ a white man who
feels the spirit of a freeman, and who will not submit to be subservient
to the caprices of his employer, so long as they can employ a slave
whom they can control as they please, and at a smaller expense. The
indisputable effect, therefore, of the introduction of additional slaves
will be the reduction of the value of labor, and the augmented severity
of the lot of the poor white man, who is entirely dependent on his labor
for the support of himself and family.
Gentlemen tell us we ought not so closely to scrutinize the conduct
of the Legislature of South Carolina. I am, said Mr. L., far from
scrutinizing in this instance the conduct of that State. I respect the
people of South Carolina. Their situation may, perhaps, be such as in
a great measure to justify their conduct, though I am far from saying
that I approve it. But when we lay a tax on the importation of slaves,
it is a sufficient reply to such remarks to say that the tax is not laid
exclusively on slaves admitted into South Carolina. It does not therefore
apply to South Carolina alone. That State has an undoubted right to admit
the importation; but Congress have also an undoubted right of taxing
them. The resolution, therefore, does not encroach on the rights of that
State. The United States and South Carolina form two bodies politic, both
of which are possessed of constitutional rights. To the one belongs the
right of importing, to the other, the right of taxation; and this last
right may be exercised without involving any censure of the State of
South Carolina. The only necessary inquiry is, whether the proposed tax
will be oppressive or unjust. I believe it will be universally agreed
that an imported article worth four hundred dollars will not be taxed
high compared with other articles, when it pays a duty of ten dollars. As
to the constitutionality of the tax not a word need be said; that has not
and cannot be disputed.
WEDNESDAY, February 15.
_Importation of Slaves._
The House again resolved itself into a Committee of the Whole, on Mr.
BARD’s resolution to impose a tax of ten dollars on every slave imported
into the United States; the debate on which occupied the remainder of the
sitting.
Mr. LUCAS supported, and Mr. HOLLAND opposed the resolution.
Mr. EARLE moved that the committee rise and report progress. His
reason for this motion was, that, from information received from South
Carolina, on which he placed much reliance, it was expected that the
Legislature would meet in April, and would then repeal the act admitting
the importation of slaves. Should the committee rise, he would move a
postponement of the consideration of the resolution to the first Monday
in May.
Mr. GREGG.--I hope the motion for the committee to rise will prevail;
and that any further proceeding on this subject will be postponed for
the present. It has been said by the gentleman from South Carolina
who made the motion, and I have heard it mentioned by others, that a
considerable ferment has been excited in that State by the passage of
the law authorizing the importation of slaves, and that it is highly
probable the Legislature, at its next session, will repeal that law. That
session, it is expected, will be held in April, the Governor having it
in contemplation to convene the Legislature at that time for the purpose
of submitting to their consideration the proposed amendment to the
constitution.
Let it not, Mr. Chairman, be inferred, from what I have said, that I am
in principle opposed to the effect which I am confident the mover of the
resolution expected it would produce. No member of this House is, or can
be, more decidedly opposed to slavery than I am. In the State from which
I come slavery is scarcely, if at all, known. I do not know whether,
at this moment, it has any existence there. However the inhabitants of
that State may differ on other points, on the subject of slavery we are
all united. All parties have joined in abolishing it. I sincerely wish
that Congress possessed a constitutional power to abolish it, or at
least to check its further progress in the United States. If they did
possess such power, I would most cordially concur in putting it into
operation. Instead of ten dollars, I wish the constitution would warrant
us in imposing a tax of one hundred, or of five hundred dollars on each
imported slave. I would willingly vote for that sum, because it would
amount to an entire prohibition of such importation, and effectually
destroy the traffic which I consider highly impolitic, as well as
contrary to the principles of justice.
When the present constitution was adopted, there were no laws in several
States to prohibit the importation of slaves. It is but a few years
since such a law was passed by the State of Georgia. During all that
period money was much wanted. The revenue was not adequate to the demand.
Government was compelled to have recourse to loans, and in some instances
had to submit to a heavy interest; yet in all that time the idea, I
believe, was never suggested in Congress of supplying the deficiency
by imposing a tax on slaves, although numbers were then imported. From
this it may be inferred, that at that time the power vested in Congress
by the constitution of imposing a tax of ten dollars on each person
imported into any of the then existing States, agreeably to its laws,
was not considered as given for the purpose of raising revenue. It was
given, it may be presumed, for the purpose of being used as a check to
the trade, and at the time the constitution was adopted, the exercise of
that power might have contributed to produce such effect. The price of
slaves was then low; their labor was not so productive to their owners,
and, of course, ten dollars in addition to the then current price might,
in some measure, have checked the spirit of purchasing. But soon after
that period, by the introduction of the cultivation of cotton, the labor
of slaves became more valuable, and their price enhanced in proportion.
Ten dollars then bore some proportion to the price of a slave, but at
this time it is comparatively as a cipher. A planter who can find his
advantage in giving four hundred dollars, which is said to be the present
current price of a good negro, will think but little of ten additional
dollars. In the present state of things, therefore, I take it the
proposed tax cannot effect the object contemplated by the mover of the
resolution--it can neither prevent nor remedy the evil; and as it has
the appearance of giving legal sanction to the trade, and may have an
influence on the Legislature of South Carolina, inasmuch as it is an
implied attack on their sovereignty, and a censure on them for passing
an act which, however important it may be in our view, the constitution
certainly did authorize them to pass, I think the further consideration
of the subject had better be postponed for the present; perhaps always,
until Government may have it in its power to adopt measures calculated to
produce an entire prohibition of the trade.
Mr. HUGER said the arguments urged by the friends of the motion were
two-fold. One class of gentlemen say they are not in favor of this tax
for purposes of revenue, but to manifest the opinion of the National
Legislature; while another class declares their only reason for laying it
is the revenue it will bring into the Treasury. A decision, therefore,
by the House, will settle no principle; for supposing that a majority
of the members shall be found in favor of the tax, one-half of them
will vote for it on one principle and one-half on another. Under these
circumstances, he appealed to gentlemen inclined to favor the resolution,
whether it would not be the best policy to wait until the Legislature
of South Carolina had an opportunity of repealing the obnoxious law. Is
it a pleasant thing to any gentleman on this floor to throw a stigma
upon a State? And will not gentlemen from the Middle and Eastern States
recollect that the situation of South Carolina is very different from
that of their States? Let them, then, do as much good as they can at
home; but let them, in God’s name, permit us to act for ourselves. It is
a very easy thing to make some harsh remarks on the conduct of particular
States, even of the State of Pennsylvania, much as that State is
deservedly respected. Mr. H. said he did not believe that State stood one
iota higher than other States in the Union. For he believed that peculiar
interest operated there as well as in other States.
Mr. H. said, from what had been expressed to-day, he did not believe the
people of South Carolina friendly to the act admitting the importation
of slaves. Every Representative of that State on this floor wished, he
believed, that it had never been passed. But as it had passed, they
conceived it to be their duty to resist a measure which went to censure
the State for the exercise of an undoubted right.
Mr. STANTON.--Mr. Speaker: I am highly gratified to find honorable
members in every part of the House who reprobate the infamous traffic of
buying and selling the human species. On this occasion but a few remarks
are necessary, if morality, humanity, and justice, are conducive to the
happiness of society. It is not my duty nor intention to criminate the
State of South Carolina, whose late conduct has created serious and well
founded alarm. It is a duty I owe to my constituents and myself not
to connive at a measure that, in my humble opinion, goes to shake the
pillars of public security, and threatens corruption to the morals of our
citizens, and tarnishes the American character. Sir, while I deprecate
the repeal of the non-importation act of South Carolina, I console myself
with the pleasing expectation that the State will retract the error they
have recently and unguardedly fallen into, and I cannot doubt but the
honorable members from that State, on this floor, will lend their aid to
effect so desirable a measure--to enact again the prohibitory statute.
We are told if the House adopt the resolution, it will irritate South
Carolina, notwithstanding the opposers of the resolution confess the
impolitic conduct of South Carolina. I wish not to offend any of our
sister States, much less, that important State whose wisdom, virtue, and
patriotism, have been conspicuous on every other occasion. The opposers
of the resolution inform us its adoption will both encourage and sanction
the importation, and that they have a constitutional right to import
until 1808. I grant it, but I hope better things of that State; and
things that accompany reformation. She has recently, with other States,
emancipated herself from tyranny and oppression, and will she sully her
fair fame by commencing tyrant herself? Sir, the speakers from the State
of South Carolina, and particularly the honorable member who offered a
resolution as a substitute for the one under consideration, delivered
himself in sentiments of the most admirable humanity, and constitutional
love and zeal for his country; and, if he were a member from any other
State in the Union, I should have the honor, I make no doubt, of voting
with him for the resolution on your table. Sir, I am sensible the General
Government cannot prohibit the traffic previous to the year 1808. This is
one of the most humiliating concessions made by that venerable convention
which framed the constitution, and we are bound by it. I ask, is the
policy of the measure embraced by the resolution sound? I believe it is.
I consider slaves a luxury--they are considered by the constitution,
three-fifths of them, to give a Representative, and I ask why not tax
them? It is a sound maxim that representation and taxation should go hand
in hand. To lay a tax being the only constitutional power the General
Government possesses, I think it good policy to exercise it.
The State of Rhode Island, from whence I came, passed a law declaring
negro children born posterior to 1784, as free as white children.
Mr. Speaker, I mention this statute merely to obviate the erroneous
impression, that otherwise might be made with a view to mislead the
public mind, that the citizens of Rhode Island are disposed to favor the
villanous traffic. I wish not to egotize, but I can assure the House this
traffic has been abhorrent to me upwards of forty years, and if I should
live to see 1808--that auspicious period in our national compact which
shall be exonerated from the tragic feature that has cast a shade on that
valuable instrument--if the important acquisition of Louisiana gave ample
cause for festivity, still greater cause shall we have when the glorious
period shall arrive of 1808. That shall be my jubilee.
After a few further remarks, by Mr. HUGER and Mr. LUCAS, the question was
taken on the rising of the Committee, and passed in the negative--yeas
58, nays 60. When the resolution was agreed to.
The committee rose and reported their agreement to the resolution, which
the House immediately took into consideration.
Mr. WYNN moved to postpone the further consideration of the resolution
till the first Monday in January, and required the yeas and nays.
The question was then taken on the postponement, by yeas and nays, and
passed in the negative--yeas 54, nays 62, as follows:
YEAS.--Willis Alston, jun., Nathaniel Alexander, George Michael
Bedinger, Silas Betton, William Blackledge, Walter Bowie,
John Boyle, William Butler, John Campbell, Levi Casey, Thomas
Claiborne, Joseph Clay, Jacob Crowninshield, Richard Cutts,
Samuel W. Dana, John Davenport, John Dawson, William Dickson,
Thomas Dwight, John B. Earle, Peter Early, James Elliot,
William Eustis, John Fowler, Edwin Gray, Andrew Gregg, Roger
Griswold, Samuel Hammond, Wade Hampton, Seth Hastings, Joseph
Heister, James Holland, Benjamin Huger, Michael Leib, Thomas
Lowndes, Matthew Lyon, Andrew McCord, David Meriwether, Thomas
Moore, Joseph H. Nicholson, Thomas Plater, John Randolph, John
Rhea of Tennessee, Thomas Sanford, Tompson J. Skinner, John
Cotton Smith, James Stephenson, Samuel Tenney, Samuel Thatcher,
Killian K. Van Rensselaer, Daniel C. Verplanck, Lemuel
Williams, Richard Wynn, and Thomas Wynns.
NAYS.--Isaac Anderson, John Archer, Simeon Baldwin, David Bard,
Adam Boyd, Robert Brown, Joseph Bryan, William Chamberlin,
Clifton Claggett, Matthew Clay, Frederick Conrad, Ebenezer
Elmer, John W. Eppes, William Findlay, James Gillespie,
Peterson Goodwyn, Gaylord Griswold, John A. Hanna, William
Helms, William Hoge, David Holmes, David Hough, John G.
Jackson, Walter Jones, William Kennedy, Nehemiah Knight, Joseph
Lewis, jr., Henry W. Livingston, John B. C. Lucas, William
McCreery, Samuel L. Mitchill, Nicholas R. Moore, Jeremiah
Morrow, Anthony New, Thomas Newton, jr., Gideon Olin, Beriah
Palmer, Thomas M. Randolph, Jacob Richards, Cæsar A. Rodney,
Erastus Root, Thomas Sammons, Ebenezer Seaver, James Sloan,
John Smilie, John Smith of New York, John Smith of Virginia,
Henry Southard, Richard Stanford, Joseph Stanton, John Stewart,
Samuel Taggart, Philip R. Thompson, Abram Trigg, John Trigg,
Philip Van Cortlandt, Isaac Van Hornee, Joseph B. Varnum, Peleg
Wadsworth, Matthew Walton, Marmaduke Williams, and Joseph
Winston.
And then the main question being taken that the House do agree to the
said resolution, as amended to read as follows:
_Resolved_, That a tax of ten dollars be imposed on every slave
imported into any part of the United States:
It was resolved in the affirmative--yeas 71.
_Ordered_, That a bill or bills be brought in, pursuant to the said
resolution; and that the Committee of Ways and Means do prepare and
bring in the same.
FRIDAY, February 17.
_Importation of Slaves._
The House resumed the consideration of the unfinished business of
yesterday, viz: “What day should be made the order to the Committee of
the Whole to consider the bill laying a tax of ten dollars upon every
slave imported into the United States.”
Mr. LOWNDES moved that the further consideration of the bill should be
postponed till the first Monday in December.
Mr. LOWNDES.--In moving a postponement of the bill to the first Monday
in December next, my object is to get rid of it altogether. Gentlemen
have supported the resolution upon which this bill is founded, upon
such a variety of, and contradictory grounds, that their arguments are
not very susceptible of a reply. I am, however, very glad that it has
been conceded by every gentleman who has spoken upon the subject, that
this tax, if laid, would not have the effect of diminishing the number
of Africans imported into the country. When it was admitted that the
object for which the resolution was avowedly brought forward, would not
be obtained, I did hope that the resolution itself would not have been
persevered in. The gentleman from Pennsylvania, (Mr. GREGG,) to whose
arguments I generally listen with pleasure, has told us that he would
not for the world give his vote for this tax, for the purpose of raising
revenue; but that he would be obliged to vote for the resolution, to show
his disapprobation of the trade. The gentleman did, however, manifest
a disposition to get rid of the question, without taking a direct vote
upon it. Another gentleman from Pennsylvania (Mr. SMILIE) has told us,
that he too is averse to this tax with a view to revenue, but that he
must vote for it, for if he does not, it will be an admission, on his
part, that Congress is favorable to the trade. What am I to infer from
this observation? Am I to infer that Congress until this time has been
favorable to the trade; and am I to infer that the gentleman himself, who
has for so long a time been an active member of Congress, has also been
favorable to it? This trade has from the adoption of the constitution
until a few years ago, when it was first prohibited by Georgia, been
carried on; and yet Congress have never exercised their power of imposing
any tax, nor have I heard that the gentleman did ever bring forward a
resolution for the purpose. There is another description of persons
imported into the United States--I mean those bound to serve for a term
of years. The comparison I admit is not analogous throughout, but it is
to a certain extent. These persons are chiefly introduced into the States
of Pennsylvania and New York; none, or at least very few of them, into
New England. Were it proposed to embrace them by this tax, would the
Representatives from those States be satisfied with the arguments that
it was a tax upon merchandise, and a general one, and therefore fair?
Their discernment would quickly point out to them, that whatever was the
appearance, it was a tax principally falling upon those States, and they
would resist.
Entertaining the opinions which I have expressed against the principle
of the bill, and wishing to get rid of it in a manner most agreeable to
those gentlemen who feel a difficulty of voting directly upon it, I move
that the further consideration of the bill be postponed until December
next.
Mr. BEDINGER said he felt the greatest veneration for the honorable mover
of the resolution, as he thought it proceeded from the purest motives.
But as he thought the slave trade was but little better than murder,
he felt a difficulty in his mind as to the propriety of admitting one
shilling of it into the treasury of the United States, lest those traders
should think themselves entitled to protection; but as the mover and
many others declare their assent towards the appropriation of said tax
hereafter to humane purposes, he believed he should vote for a bill, if
drawn in correspondence with such principles.
Mr. FINDLAY observed that it was not his wish to go into a lengthy
argument on this subject; but merely to observe that this was the first
instance of a law prohibiting the importation of slaves being repealed,
and that it might not be the last; and that, therefore, if the argument
advanced by gentlemen was good against taking it up in the first
instance, it would be equally good against taking it up in case all the
States should repeal their prohibitory laws. He also wished gentlemen to
consider that the friends of the motion were conscience-bound as well as
they, and that they considered it a moral duty to restrain, as far as
they could, the continuance of the slave trade. As, however, a question
of expediency was involved in this measure, he entertained no desire
to hasten its decision; on the contrary, his wish was to allow ample
time for considering its merits. He should therefore vote against the
postponement to December; but would move a postponement to the 2d Monday
of March, not with the view of getting rid of the subject altogether, but
to allow an opportunity of considering it fully.
Mr. HUGER did not rise with the view of going into the merits of the
bill, but to impress the propriety of agreeing to the postponement. It
was a painful subject, which necessarily excited unpleasant feelings. He
thought, if gentlemen suffered it to lie over to the next session, there
was a probability that by giving the Representatives of South Carolina an
opportunity of returning home and expressing the sentiments of Congress,
the Legislature of that State would repeal the law; whereas, should the
tax be laid, it would prevent this desirable effect. Where we differ,
said Mr. H., it is proper for us to accommodate--to meet each other half
way.
Mr. EPPES, believing that either motion of postponement would defeat
the main measure, said he should vote against both. It was not his wish
to erect the Government of the United States into a national tribunal
to censure the proceedings of the Legislature of South Carolina, or to
wound their feelings; but he was not prepared to say that Congress,
in exercising a constitutional right, erected such a tribunal. It was
in some respects immaterial whether they interfered or not, so long
as the world knew that a Legislature of a respectable State, in the
eighteenth century, passed an act allowing the importation of slaves.
That Legislature ought not to complain if the United States availed
themselves of the measure to raise revenue from it. According to the
estimate of some gentlemen, there would probably be an importation of one
hundred thousand in four years, which if this tax shall be laid, will
produce a revenue of a million of dollars. And yet we are entreated by
the gentleman from South Carolina not to molest the trade. Mr. E. said he
was not surprised at this anxiety, as, by gaining a delay of one year,
that State might be saved from the payment of above one hundred thousand
dollars.
Mr. E. said he came from a Southern country, where slaves were as much
a subject of taxation as lands; and he did not know that the statute
books of Virginia or South Carolina were stained by imposing taxes upon
them. He believed them as fair a subject of taxation as any other species
of property. He believed it as fair to lay taxes upon them as to make
the poor pay a tax upon brown sugar and other articles of the first
necessity. For these reasons he was against the postponement either to
December or March.
Mr. R. GRISWOLD considered a postponement till December as destructive
to the bill. He said he would as soon meet it on its merits, but being
prepared, as far as his vote went, to reject the bill, he should vote
for what he considered equivalent, a postponement to December. He did
not think it proper for the House to go into the measure contemplated by
the bill. There were but two principles that would justify the laying
a duty on imported articles: the one to discourage the importation of
particular articles, and the other with a view to revenue. As to the
first principle, under the constitution as it at present stood, Congress
had no right to interfere; as the States had an undoubted right to admit
the importation of slaves until the year 1808. The constitution, on this
point, had gone so far as to restrict the right of the General Government
to a tax not exceeding ten dollars upon each slave imported. This would
not amount to a prohibition or prevention of the importation. Congress
was, therefore, precluded the right of taxing, with this view, until the
year 1808. This part of the argument, on which gentlemen support the
measure, must be laid, therefore, out of view. The question then recurs,
whether we shall lay this tax for purposes of revenue? For one, (said
Mr. G.,) I am unwilling to do this. I abhor the slave trade as much as
any member on this floor, and therefore I will not consent to give it a
legislative sanction. For this measure will certainly be viewed in that
light by the people of this country and by the civilized world. It will
appear to the world that Congress are raising a revenue from a commerce
in slaves. I am not for introducing such a law, calculated to have this
impression, on our statute book. Were it in our power to prohibit the
trade, there is not, I trust, a member on this floor that would not unite
in the prohibition. But on this point our hands are tied.
Mr. GREGG observed, that when this subject was on a former day before
the House, he assigned his reasons at some length, in favor of a
postponement. The same reasons would influence his vote this day, and
he should not trouble the House with a repetition of them. He only rose
to suggest to his colleague that, by attending to one consideration, he
would be induced, he thought, to change his opinion, and to vote for
the most distant day to which it was proposed to postpone this subject.
It had been stated by a gentleman from South Carolina, and he believed
correctly stated, that by the law lately passed in South Carolina, a
considerable ferment had been excited in that State, and that it was
probable that the Legislature would, at their next session, repeal it. If
it were probable that they would repeal this law in April, it appeared
to him improper to pass an act that would operate as a censure upon the
conduct of that State.
Mr. ALSTON was surprised how it was that he and his worthy friend from
Virginia (Mr. EPPES) differed so widely upon the present occasion,
living, as it were, in the same country, and owning property of the
same kind, and pursuing the same means of obtaining a living. My friend
advocates the resolution for laying a tax of ten dollars on each slave
imported into the United States, because a considerable revenue will be
derived from such a tax; it is for that very reason that he opposed it,
because he would not consent to pass a law which had for its operation
a partial effect. Can it be right to pass a law which will impose a
heavy tax upon one part of the community, and not a cent upon the
other? No State in the Union would be affected except South Carolina.
Gentlemen ought to take care how they acted towards a sister State, and a
respectable one too.
Mr. RODNEY said, he should not have troubled the House with any remarks
on the present occasion, had he not made up his mind to vote differently
from the vote which he had before given. He said he had before voted
against the postponement of the consideration of this subject; he should
now vote in favor of a postponement; and he would, in a few words,
assign his reasons. When the resolution for imposing a tax on imported
slaves was first laid on the table, he was of opinion that he could not
vote for it without sanctioning the practice it was meant to censure.
Reflecting further, he afterwards got his own consent to vote for it.
First thoughts were frequently best; we sometimes miss the mark by taking
sight too long. In this instance, after a more mature consideration, his
mind inclined to his original opinions, for reasons which he would assign.
It was agreed, on all hands, that the conduct of the Legislature of
South Carolina was such as to merit the disapprobation of the members
of that House. On many occasions there were political dissensions
within these walls. But he rejoiced that, when questions of this kind
presented themselves, they were sure to find us unanimous. Inhumanity
was considered as a common enemy, and so inhuman a practice was justly
reprobated by all. Every gentleman from the South, as well as the East,
deprecated the act and lamented its existence.
After a few additional remarks from several gentlemen, the question was
taken by yeas and nays on a postponement to the first Monday in December,
and passed in the negative--yeas 55, nays 62.
Mr. FINDLAY moved a postponement to the second Monday in March; which,
after some debate, prevailed--ayes 56, noes 50.
[To prevent an erroneous impression being made on the public by the above
proceedings, it is proper to remark that, during the whole discussion,
not a single voice was raised in defence of the act of the Legislature
of South Carolina, allowing the importation of slaves; but that, on the
contrary, while by some of the speakers its immorality and impolicy were
severely censured, by all its existence was deprecated. A large number
of those who voted for the postponement, advocated it on the express
and sole ground that it would give the Legislature of South Carolina an
opportunity, which they believed would be embraced, to repeal the act.]
MONDAY, February 20.
_Georgia Claims._
Mr. J. RANDOLPH said, the House would recollect that he had, on a former
day, offered a resolution barring any claims derived under any act of
the State of Georgia passed in the year 1795, in relation to lands ceded
to the United States. It was not his purpose in rising at this time to
trespass on the patience of the House; nor did he know that he should in
future offer any remarks additional to those he had already made. But he
conceived it his duty to place the subject in such a point of light that
every eye, however dim, might distinctly see its true merits. For this
purpose he withdrew the resolution which he had before offered, and moved
the following resolutions:
_Resolved_, That the Legislature of the State of Georgia were,
at no time, invested with the power of alienating the right of
soil possessed by the good people of that State in and to the
vacant territory of the same, but in a rightful manner, and for
the public good:
That, when the governors of any people shall have betrayed
the confidence reposed in them, and shall have exercised that
authority with which they have been clothed for the general
welfare, to promote their own private ends, under the basest
motives, and to the public detriment, it is the inalienable
right of a people, so circumstanced, to revoke the authority
thus abused, to resume the rights thus attempted to be
bartered, and to abrogate the act thus endeavoring to betray
them:
That it is in evidence to this House, that the act of the
Legislature of Georgia, passed on the seventh of January,
one thousand seven hundred and ninety-five, entitled “An act
for appropriating a part of the unlocated territory of this
State, for the payment of the late State troops, and for other
purposes,” was passed by persons under the influence of gross
and palpable corruption, practised by the grantees of the lands
attempted to be alienated by the aforesaid act, tending to
enrich and aggrandize, to a degree almost incalculable, a few
individuals, and ruinous to the public interest:
That the good people of Georgia, impressed with general
indignation at this act of atrocious perfidy and unparalleled
corruption, with a promptitude of decision highly honorable to
their character, did, by the act of a subsequent Legislature,
passed on the thirteenth of February, one thousand seven
hundred and ninety-six, under circumstances of peculiar
solemnity, and finally sanctioned by the people, who have
subsequently ingrafted it on their constitution, declare the
preceding act, and the grants made under it, in themselves
null and void; that the said act should be expunged from the
records of the State, and publicly burnt; which was accordingly
done; provision at the same time being made for restoring
the pretended purchase-money to the grantees, by whom, or by
persons claiming under them, the greater part of the said
purchase-money has been withdrawn from the treasury of Georgia:
That a subsequent Legislature of an individual State has an
undoubted right to repeal any act of a preceding Legislature,
provided such repeal be not forbidden by the constitution of
such State, or of the United States:
That the aforesaid act of the State of Georgia, passed on
the thirteenth of February, one thousand seven hundred and
ninety-six, was forbidden neither by the constitution of that
State, nor by that of the United States:
That the claims of persons derived under the aforesaid act
of the seventh of January, one thousand seven hundred and
ninety-five, are recognized neither by any compact between the
United States and the State of Georgia, nor by any act of the
Federal Government: Therefore,
_Resolved_, That no part of the five millions of acres reserved
for satisfying and quieting claims to the lands ceded by the
State of Georgia to the United States, and appropriated by
the act of Congress passed at their last session, shall be
appropriated to quiet or compensate any claims derived under
any act, or pretended act, of the State of Georgia, passed,
or alleged to be passed, during the year one thousand seven
hundred and ninety-five.
On considering the resolutions, the House divided--ayes 53. Carried.
Mr. J. RANDOLPH then moved their reference to the Committee of the Whole
on the bill providing for the settlement of sundry claims to public lands
lying south of the State of Tennessee. Carried--yeas 50, nays 30.
WEDNESDAY, February 22.
_Naval Peace Establishment._
The House went into Committee of the Whole on the bill supplementary to
an act providing for a Naval Peace Establishment.
[This is the bill introduced at the instance of Mr. NICHOLSON, with a
view to a more economical and beneficial arrangement in relation to the
national ships laid up in ordinary.]
Mr. LEIB moved an additional section, virtually abolishing the office of
Lieutenant Colonel Commandant of the Marine Corps, and authorizing the
President to make such other reductions of the subordinate officers as
he may think fit. The object of the bill being a reform of the expenses
attending the Naval Establishment, the measure contemplated in the
amendment was, in his opinion, a very proper one to be answered by it.
The bill, he said, contemplated an annual saving, in the single article
of provisions, of $7,000. By abolishing the office of Lieutenant Colonel
Commandant, a saving of sixty thousand dollars in addition might be
made. This officer made, it appeared, all the contracts, and it would be
seen by documents before the House, that while the price of the ration
in the War Department was fifteen cents, that fixed by this officer was
twenty cents--the difference made the sum of $3,750 a year. It would also
be seen that exorbitant sums were expended in postage and fuel. In the
single article of postage, $150 had been expended within three months.
The amendment was then agreed to--yeas 62.
Mr. EUSTIS moved a new section, for the allowance to captains, holding
themselves in readiness to enter the service, of the same rations they
are entitled by law to receive when in actual service. Disagreed to--yeas
37, nays 45.
The committee rose, and the House agreed to the amendment of Mr. LEIB
without a division.
Mr. JACKSON moved a new section, for the allowance to captains, required
to hold themselves in readiness for service, of the same rations they are
entitled to receive when in actual service.
Mr. NICHOLSON supported the amendment, to which the House agreed--yeas
44, nays 40; when the bill was ordered to a third reading to-morrow.
On motion, the House adjourned.
FRIDAY, February 24.
_Contested Election._
Mr. FINDLAY, from the Committee of Elections, to whom was referred a
memorial of Andrew Moore, of Virginia, respecting the election of THOMAS
LEWIS, a sitting member, made a report, which, after stating the bad
votes given for each of the candidates, concludes with the opinion that
THOMAS LEWIS is not, and that ANDREW MOORE is entitled to a seat in the
House. The report is as follows:
“That, at an election held on three several days, in the month
of April, in the year one thousand eight hundred and three,
directed by the law of the State of Virginia, for a member
of the House of Representatives of the United States for the
district composed of the counties of Botetourt, Rockbridge,
Kenawha, Greenbriar, and Monroe, in the western district of
Virginia, it appears--
“That, of the polls taken in the county of Botetourt, Thomas
Lewis had one hundred and fifty-five votes, and Andrew Moore
had three hundred and five votes; that, out of the persons
who voted for Thomas Lewis, twenty-three were unqualified to
vote; and that out of the persons who voted for Andrew Moore,
twenty-eight were unqualified to vote.
“That, of the polls taken in Rockbridge, Thomas Lewis had
sixty-five votes, and Andrew Moore had three hundred and
twenty-one votes; that out of the persons who voted for Thomas
Lewis, there were four persons unqualified to vote; and out
of the persons who voted for Andrew Moore, there were twenty
persons unqualified to vote.
“That, of the polls taken in Kenawha county, Thomas Lewis had
one hundred and sixty-one votes, and Andrew Moore had one vote;
that out of the persons who voted for Thomas Lewis there were
ninety persons unqualified to vote.
“That, of the polls taken in Greenbriar, Thomas Lewis had
five hundred and thirty-nine votes, and Andrew Moore had one
hundred and three votes; that out of the persons who voted for
Thomas Lewis two hundred and two were unqualified to vote; and
out of the persons who voted for Andrew Moore thirty-two were
unqualified to vote.
“That, of the polls taken in Monroe county, Thomas Lewis had
eighty-four votes, and Andrew Moore had one hundred and two
votes; that out of the persons who voted for Thomas Lewis
thirty-six were unqualified to vote; and out of the persons who
voted for Andrew Moore, forty-four were unqualified to vote.
Hence it appears--
“That all the persons who voted for Thomas Lewis in the several
counties aforesaid, which compose the western district of the
State of Virginia, were one thousand and four; and that all the
persons who voted for Andrew Moore in the said counties were
eight hundred and thirty-two.
“It further appears, on a deliberate scrutiny, that, of the
above votes, three hundred and fifty-five persons voted for
Thomas Lewis who were unqualified to vote, and that one hundred
and twenty-four voted for Andrew Moore who were unqualified to
vote; and that, by deducting the unqualified votes from the
votes given for each of the parties at the elections, Thomas
Lewis has six hundred and forty-nine good votes, and Andrew
Moore has seven hundred and eight good votes, being fifty-nine
more than Thomas Lewis. Whereupon,
“Your committee are of opinion that Thomas Lewis, not being
duly elected, is not entitled to a seat in this House; and
they are further of opinion that Andrew Moore, who has the
highest number of votes, after deducting the before-mentioned
unqualified votes from the respective polls, is duly elected
and entitled to a seat in this House.”
_Ordered_, That the report be committed to a Committee of the whole House
on Wednesday next.
TUESDAY, February 28.
_Louisiana Territory._
The House resolved itself into a Committee of the Whole on the bill
sent from the Senate, entitled “An act erecting Louisiana into two
Territories, and providing for the temporary government thereof.”
The fourth section being under consideration, as follows:
“SEC. 4. The Legislative powers shall be vested in the
Governor, and in thirteen of the most fit and discreet persons
of the Territory, to be called the Legislative Council, who
shall be appointed annually by the President of the United
States, from among those holding real estate therein, and who
shall have resided one year at least in the said Territory,
and hold no office of profit under the Territory or the United
States. The Governor, by and with advice and consent of the
said Legislative Council, or of a majority of them, shall have
power to alter, modify, or repeal the laws which may be in
force at the commencement of this act. Their Legislative powers
shall also extend to all the rightful powers of legislation:
but no law shall be valid which is inconsistent with the
constitution and laws of the United States, or which shall
lay any person under restraint, burden, or disability, on
account of his religious opinions, professions, or worship;
in all which he shall be free to maintain his own, and not
burdened for those of another. The Governor shall publish
throughout the said Territory all the laws which shall be made,
and shall from time to time report the same to the President
of the United States, to be laid before Congress; which, if
disapproved of by Congress, shall thenceforth be of no force.
The Governor or Legislative Council shall have no power over
the primary disposal of the soil, nor to tax the lands of the
United States, nor to interfere with the claims to land within
the said Territory. The Governor shall convene and prorogue
the Legislative Council, whenever he may deem it expedient. It
shall be his duty to obtain all the information in his power
in relation to the customs, habits, and dispositions of the
inhabitants of the said Territory, and communicate the same,
from time to time, to the President of the United States.”
Mr. LEIB observed that he did not like the provisions of this section,
and least of all that which gave the Governor the right of proroguing
the Legislative Council. It appeared to him that that body was the most
dependent thing of its nature in the United States; and when the power of
prorogation vested in the Governor was considered, it seemed to him that
the people would do much better without any such body. This was a royal
appendage which he did not like. He, therefore, moved to strike out the
words “and prorogue.”
Mr. GREGG said he was not only in favor of the motion of his colleague,
but against the section generally. It would require much further
amendment to induce him to vote for it. He was opposed to the power it
gave the President to appoint the members of the Legislative Council. It
appeared to him a mere burlesque to say they shall be appointed by the
President. How is the President to get information of the qualifications
for office? This could only be obtained from the officers appointed by
him, and principally from the Governor, who will not fail to recommend
to the President the appointment of persons favorable to his own views.
Mr. G. said that they would, therefore, rather vest the appointment of
the members of the Legislative Council in the Governor; the mode pointed
out in the bill was only calculated to rescue the Governor from the
responsibility attached to his office, by dividing it among others.
Mr. LEIB said his amendment did not in the least interfere with that of
his colleague, with whom he fully accorded in sentiment.
Mr. VARNUM was of opinion that the section in the bill provided such
a kind of Government as had never been known in the United States. He
thought sound policy, no less than justice, dictated the propriety of
making provision for the election of a legislative body by the people.
There was not only the common obligation of justice imposed upon Congress
to do this, but they were bound by treaty. The treaty with France
expressly says:
“The inhabitants of the ceded territory shall be incorporated
in the Union of the United States, and admitted as soon
as possible, according to the principles of the federal
constitution, to the enjoyment of all the rights, advantages,
and immunities of citizens of the United States.”
The treaty makes it obligatory on the United States to admit the
inhabitants of Louisiana, as soon as possible, to the enjoyment of
all the rights, advantages, and immunities of citizens of the United
States. In order to decide the principle of this section of the bill
by an expression of the sense of the committee, he would move that the
committee should rise, report progress, and ask leave to sit again, with
the view of refusing them leave, and afterwards referring the bill to a
select committee to receive a modification in conformity to the opinions
of the House.
Mr. HUGER trusted the committee would not rise. He knew not the
impressions on this subject on the minds of other gentlemen; but the
information lately received from Louisiana convinced him of the propriety
of proceeding with the bill immediately. In addition to the principles
contained in the section under consideration, there were others of great
importance. He thought it would be most advisable, in a future stage of
discussion, to commit the bill to a select committee, if any material
alterations should be made in it. It was best, at present, to deliberate
fully on the several provisions of the bill, and for gentlemen to make
an interchange of opinions. Were the bill now committed, the report of
the committee would not advance the business in the least, as that report
might be as objectionable to the House as the bill from the Senate.
Mr. ELLIOT, for like reasons assigned by the gentleman from South
Carolina, and for other reasons, hoped the committee would not rise. He
did not believe the section under consideration was, in its present form,
consistent either with the spirit of the constitution or the treaty; but
he believed that, by the introduction of a small amendment, the section
might be rendered perfectly consistent with them, and the passage of
the bill be greatly accelerated. He preferred a middle course between
the existing section and the amendment offered by the gentleman from
Pennsylvania. Whatever amendments were necessary would be easily offered
and discussed at present; whereas no desirable object could be effected
by a reference.
Mr. GREGG said it also appeared to him that no valuable purpose would
be answered by referring the bill to a select committee. What can such
a committee do? There exists no diversity of sentiment in the House on
principle. Some are for giving to the people of the Territory, instead of
the President, the power of electing members of the Legislative Council.
Here, then, are two distinct principles, and unless the House determine
which of them it will adopt, a select committee can do nothing. Let us
settle the principle of the bill first, and then refer it to a select
committee, to modify it in correspondence with them.
Mr. EUSTIS said this subject was, in his opinion, inferior to no other
discussed this session. With regard to the provisions of the section
under consideration, it was to be expected that there would be a
diversity of opinion. Gentlemen inimical to them had taken different
grounds. One gentleman desires the power of the Governor to prorogue the
Council to be rescinded; another gentleman wishes an entire change in
the formation of the Council; and a third is in favor of the committee
rising, that the bill may go to a select committee to report different
provisions for the government of the people of Louisiana from those
contained in the bill before us. This motion necessarily brings the
principle on which the Council is organized by the bill before us.
According to this bill, the Governor and Council are to make the laws.
Suppose the Council is in session, and the Governor possess no power to
prorogue them. Suppose they should engage in acts subversive of their
relation to the United States. Would not this power be of essential
utility? It appears to me indispensably necessary that a vein of
authority should ascend to the Government of the United States, until
the people of the Territory are admitted to the full enjoyment of State
rights. From that knowledge of this people which I have been able to
acquire, I have formed an opinion that authority should be constantly
exercised over them, without severity, but in such a manner as to secure
the rights of the United States and the peace of the country.
The government laid down in this bill is certainly a new thing in the
United States; but the people of this country differ materially from
the citizens of the United States. I speak of the character of the
people at the present time. When they shall be better acquainted with
the principles of our Government, and shall have become desirous of
participating in our privileges, it will be full time to extend to
them the elective franchise. Have not the House been informed from
an authentic source, since the cession, that the provisions of our
institutions are inapplicable to them? If so, why attempt, in pursuit of
a vain theory, to extend political institutions to them for which they
are not prepared? I am one of those who believe that the principles of
civil liberty cannot suddenly be ingrafted on a people accustomed to a
regimen of a directly opposite hue. The approach of such a people to
liberty must be gradual. I believe them at present totally unqualified
to exercise it. If this opinion be erroneous, then the principles of
the bill are unfounded. If, on the contrary, this opinion is sound, it
results that neither the power given to the President to appoint the
members of the Council, nor of the Governor to prorogue them, are unsafe
or unnecessary.
Mr. LUCAS was against the rising of the committee, inasmuch as the bill
under consideration offered the widest field of discussing the subject
before them, and inasmuch as it was proper, that the principles of it
should be settled by a majority, to enable a select committee to collect
the sense of the House. When this decision should have taken place, he
should have no objections to a recommitment for the purpose of modifying
the bill in consonance with it.
It was known, by the treaty, that the United States are bound to secure
to the people of Louisiana as large a portion of liberty and security of
rights, as though they remained under the Government of France and Spain;
and he trusted the bill as it stood secured to them much more. As an
instance, it might be mentioned that the privilege of habeas corpus had
never been enjoyed by them while they were connected with either Spain
or France. An argument was drawn from the treaty, that these people are
to be admitted to the absolute enjoyment of the rights of citizens; but
gentlemen would not deny, that the time when, and the circumstances under
which this provision of the treaty was to be carried into effect, were
submitted to the decision of Congress. It has been remarked, that this
bill establishes elementary principles of government never previously
introduced in the government of any Territory of the United States.
Granting the truth of this observation, it must be allowed that the
United States had never before devolved upon them the making provision
for the government of people under such circumstances. Governors must not
rest on theory, but must raise their political structures on the state of
the people for whom they are made. Mr. LUCAS said, that without wishing
to reflect on the inhabitants of Louisiana, he would say that they are
not prepared for a government like that of the United States. Governed by
Spanish officers, exercising authority according to their whim, supported
by a military force, it could not be said that a people thus inured to
despotism, were prepared on a sudden to receive the principles of our
Government. It was questionable whether there was a nation in Europe
whom these principles would be so advantageous to as they are to us.
It would be recollected by gentlemen, who so strenuously advocated the
abstract principle of right, that the people of Louisiana have not been
consulted in the act of cession to this country, but had been transferred
by a bargain made over their heads. It was a proof this act had not been
received with approbation by them, that when they saw the American flag
hoisted in the room of the French, they shed tears; this was a proof that
they were not so friendly to our Government as some gentlemen imagined.
He was persuaded the people of the Mississippi Territory would not have
acted in this manner. There is no doubt but that after they shall have
experienced the blessings of a free Government, they will wonder at their
having shed tears on this occasion; but they must, in the first instance,
feel these blessings.
Mr. L. said he was fully of opinion with the gentleman from Massachusetts
(Mr. EUSTIS) in the sentiments he had expressed. The United States had it
eminently in their power to make these people happy without an extension
to them of all our privileges. They will not be gratified from knowing
that the theory of liberty is extended to them, but from its practical
effects. The people of Louisiana know but little of political theories,
but they will feel the just operation of equal laws; and if they can
obtain practical justice, though it may not arise from an extension of
our elementary political principles, they will not find fault with it.
Mr. L. said he was not among those who considered the bill, in all its
provisions, perfect. He considered it susceptible of much amendment;
though not in the principle now under review. In this provision, by
declaring that the inhabitants of the Territory shall compose the
Legislative Council, a great point is gained by the people. For it
cannot be supposed that the inhabitants, thus called upon to discharge
high duties to society, will so far lose sight of their own permanent
interests as to sacrifice them, together with the good of the country, to
whim or corruption.
Their election by the President is another important security. Suppose
the Governor shall wish to render the Council his puppets. The President
will not feel an interest in gratifying his improper views. It is,
however, said that his information will be derived from the Governor. But
the fact is, he will receive it in part from the Governor, and in part
from others; and he will be sagacious enough to judge, not from a part,
but from the whole that reaches him.
A valuable effect will flow from composing the Council of the inhabitants
of the country; its members will thereby be initiated in the theory of
our Government and laws, and this knowledge will hereafter qualify them
for higher political trusts; they will acquire much political knowledge;
they will return home, and their conversation with their friends will
naturally turn on political topics, and on the laws they have passed;
thus will a spirit of inquiry and of political discussion spring up
in the country. When this effect shall be produced, it will be time,
and only then, to give them a government as liberal and free as that
contemplated by the amendment.
Mr. MACON (Speaker) observed that he coincided in opinion with the
gentleman from Massachusetts, (Mr. VARNUM,) whose object would, he
thought, be better tried by a motion to strike out the section. This
motion would bring the principle before the House. If the section should
be stricken out, the bill would be recommitted for new modification to
a select committee. Mr. M. accordingly moved to strike out the fourth
section.
This motion having been stated from the Chair,
Mr. MACON again rose. I will endeavor, said he, to compress my ideas on
this point in a few words. My first objection to the principle contained
in the section is, that it establishes a species of government unknown to
the laws of the United States. We have three descriptions of Government;
that of the Union, that of the States, and Territorial governments. I
believe the Territorial government, as established by the ordinance of
the Old Congress, the best adapted to the circumstances of the people
of Louisiana; and that it may be so modified as best to promote their
convenience. The people residing in the Mississippi Territory, are now
under this kind of government.[8] Is it not likely that the people
of Louisiana will expect the same form of government and laws with
their neighbors; and is it not desirable for the general peace and
happiness that there should be a correspondence between them? If they
are as ignorant as some gentlemen represent them, (and of this I know
nothing,) will they not expect the same grade of government with the
inhabitants of the Mississippi Territory, with whom they will have a
constant intercourse? Although they lived previously under the Spanish
Government, and although their number did not entitle them, when formed
into a Territory, to the second grade of government, no inconvenience
resulted. It is said, in reply to this observation, that a large number
of inhabitants of that Territory were Americans. It is true that many of
them were native Americans, but some also were Spanish.
The simple question is, what kind of government is most fitted to this
people? It is extremely difficult to legislate for a people with whose
habits and customs we are unacquainted. I, for one, declare myself
unacquainted with them; nor would I in fixing the government, unless
for the safety of the Union, do an act capable of disgusting the people
for whom it is adopted. It will be a wise policy to avoid whatever is
calculated to disgust them. My opinion is that they will be better
satisfied with an old-established form of government, than with a new
one. Why? Because they have seen it established in the adjacent Territory
of Mississippi, and know the manner in which it operates. If there are
bad men in Louisiana, will any thing be more easy than to disgust the
people against the General Government by showing that they have given
one kind of government to the people of the Mississippi Territory, and
a different kind to them? In my mind, it is sound policy to give them
no cause of complaint. We ought to show them that we consider them one
people.
I will not pretend to say that the people of Louisiana are prepared for
a State government, which differs most materially from a Territorial
government. The best way to prepare them for such a government, is to
take the system already known to our laws; one grade or the other of the
Territorial government. For myself, I would prefer the adoption of the
second grade, but I would prefer the first to any new system. For these
reasons, I hope the section will be struck out, and the bill referred to
a select committee.
WEDNESDAY, February 29.
_Government of Louisiana._
The House went again into a Committee of the Whole on the bill for the
government of Louisiana.
The fourth section of the bill being under consideration--
Mr. JACKSON said: As this section is the corner stone on which the whole
superstructure rests, and involves the most important principle of the
bill, I will ask the indulgence of the committee to make a few remarks
upon it. It presents two important questions; first, whether it is proper
on the broad principle of political justice to adopt it? And secondly,
whether it is consistent with our treaty with France? Two questions arise
out of the first proposition; first, Is the system consonant to the
habits of a free people? And, secondly, if not, is it the best calculated
to advance the happiness of those who have never tasted the blessings of
liberty? The first question requires no discussion; it will be answered
in the negative by every section of this Union. Every section has been
engaged in forming a constitution, and both the State and Federal
constitutions have decided this point in the negative, because neither
partake of the aristocratical or monarchical features contained in this
section.
It is urged by gentlemen, that we ought to give to this people liberty
by degrees. I believe, however, there is no danger of giving them too
much of it; and I am unwilling to tarnish the national character by
sanctioning the detestable calumny that man is not fitted for freedom.
What will the world say if we sanction this principle? They will say we
possess the principle of despotism under the garb of Republicans; and
that we are insincere, with whatever solemnity we may declare it, in
pronouncing all men equal. They will tell us that we have emphatically
declared to the American people and to the world, in our first act
evincive of emancipation from the tyranny of England, that all men are
equal; and that all governments derive their rightful power from the
consent of the governed; and that notwithstanding, when the occasion
offers, we exercise despotic power, under the pretext that the people are
unable to govern themselves.
Mr. HOLLAND.--As my ideas are very different from those of the gentleman
who has preceded me, and as I do not believe that either policy or moral
obligation recommends the adoption of a system such as he has avowed to
be proper, I will, in a few words, state the sentiments I entertain.
Can gentlemen conceive the people of Louisiana, who have just thrown
off their chains, qualified to make laws? Under the late system the
people had no concern in the government, and it was even criminal for
them to concern themselves with it; they were set at a distance from
the government, and all required from their hands was, to be passive
and obedient. Can it be supposed such a people made the subject of
government their study, or can it be presumed they know any thing about
the principles of the Constitution of the United States? Would persons
thus elected be of any service to the Government? So far from being an
assistance, they would be an encumbrance. Why then impose this burden
upon them? The object of this bill is to extend the laws of the United
States over Louisiana, not to enable the people of Louisiana to make
laws. This extension, so far from being an act of despotism, will be an
important privilege. If the laws of the United States were founded in
injustice they might have some right to complain, but we only apply to
them laws by which we ourselves consent to be governed.
The provisions of this section are said to be worse than those of the
first grade of Territorial governments; but this is incorrect. This plan
is not equal to the second grade, but it is certainly superior to the
first grade. The first grade gives the Governor and judges all the powers
granted by this section; and this section, in addition to the Governor
and judges, contemplates the appointment of thirteen councillors. Is not
this preferable to giving the whole power to the Governor and judges?
Mr. BOYLE said he should not have risen on this occasion but for the
impression that some arguments of weight had been omitted, or had not
been sufficiently dwelt on. In the few remarks he purposed to make,
he should endeavor to avoid a repetition of ideas already expressed.
It was not so much to the novelty, as to the nature of the plan of
government contained in the fourth section, that he was opposed. He did
not consider the Territorial government proposed to be substituted as
perfect, but he believed it infinitely preferable to that contemplated
in the bill. Preferring, therefore, either grade to this, said Mr. B., I
shall concur in supporting the substitution of the second grade as most
fitted to the circumstances of the people of Louisiana. I feel peculiarly
hostile to the mode of appointing the Legislative Council. The power of
appointing them is unnecessarily vested in the President. Waiving all
objection arising from the distance of the President from the men to
be appointed; from the necessity of his relying on the representations
of others as to their qualifications, and his liability to be deceived
by misrepresentations; still one objection remains, which, to my mind,
is most important. I am, said Mr. B., unwilling to extend executive
patronage beyond the line of irresistible necessity. For, I believe, if
ever this country is to follow the destiny of other nations, this destiny
will be accelerated by the overwhelming torrent of executive patronage.
I feel as high a veneration for the present Chief Magistrate as any man
on this floor. Early attached to him, I have retained the full force of
my regard for him. But, were he an angel, instead of a man, I would not
clothe him with this power; because, in my estimation, the investiture
of such high powers is unnecessary. My opinion is, that they will be
more properly exercised by the people. To give them to the President
is to furnish a dangerous precedent for extending executive power and
patronage; and as he has himself said, one precedent in favor of power is
stronger than a hundred against it. I am in favor of giving to the people
all that portion of self-government and independence which is compatible
with the constitution.
WEDNESDAY, March 7.
_Georgia Claims._
The House resolved itself into a Committee of the Whole on the bill
providing for the settlement of sundry claims to public lands lying south
of the State of Tennessee; to which Committee of the Whole were also
referred, on the twentieth ultimo, a motion containing sundry resolutions
“respecting claimants to the said lands under an act of the Legislature
of the State of Georgia, passed in the year one thousand seven hundred
and ninety-five.”
Mr. J. RANDOLPH called for the reading of sundry resolutions lately
offered by him on this subject. The resolutions having been read, Mr.
R. said, when he had submitted them, it was with the view of trying
the question then before the committee as he thought fairly. It was no
part of his intention to embarrass the operations of the friends of the
bill, further than to take the sense of the committee and of the House
on each specific proposition embraced by the resolutions. His wish,
therefore, was, that the sense of the committee, in the first instance,
should be taken on the resolutions. If they should be rejected, the vote
of rejection would be a virtual admission of the claims of 1795; and
gentlemen might then modify the bill in such manner as might best please
them to do.
Mr. MITCHILL.--These resolutions tend to involve Congress in the
proceedings of the State of Georgia. I consider myself as one of those
who, by assenting to certain acts heretofore passed by Congress, have
consented to a hearing and compromise with the grantees. If this
construction be correct, the Committee are precluded from adopting these
resolutions; nor is it proper, in my opinion, for Congress to go into
a view of the proceedings of Georgia on this occasion. That State is
sovereign to a certain extent, and this Government possesses no right to
interfere with her sovereignty. Attached to this sovereignty is the right
of granting land belonging to her. But it is alleged that Georgia was,
in the year 1795, in a disorderly state, and that a certain Legislature
in that year did a certain act which a subsequent Legislature declared
to be totally unauthorized. This may be so. It is certain the second
Legislature declared the act of the first null, under circumstances of
a very extraordinary nature. I do not, however, see that it is our duty
to give an opinion whether the Legislature of Georgia acted wickedly or
uprightly. Whichever course they may have pursued, I do not believe this
body to be a constitutional board of censors. We find frequent occasions
enough on which, without going out of our way, our duty calls upon us to
give our opinions. Believing this to be an occasion on which no opinion
is required from us, and one which it is most prudent to pass by without
giving such opinion, I wish not to vote for or against the resolutions. I
am, therefore, for the committee’s rising and reporting the bill.
Mr. J. RANDOLPH.--I had hoped that when these resolutions were sent from
the House to the committee, they would have received the respectful
attention to which every such reference is entitled; and that the
committee would at least have deemed them worthy of some expression
of opinion on them; that they would have deigned to say whether the
reasoning or facts contained in them are or are not erroneous and
unfounded. The gentleman from New York tells the committee that, by
an act passed at a previous session of Congress, a pledge has been
given to a certain description of claimants under the act of 1795, to
do something in relation to their claims. If so, is this a reason for
not acting on the resolutions? No; it is a reason for taking them up
and rejecting them. One of those resolutions says, and I am prepared
to prove it true, and I call on gentlemen to show its falsehood, “that
the claims of persons derived under the act of January first, 1795, are
recognized neither by any compact between the United States and the State
of Georgia, nor by any act of the Federal Government.” I deny that they
are so recognized. If they are, what can be easier than for the learned
gentleman to refer to the compact under which they are recognized? This
he cannot show, and hence his unwillingness to express an opinion. At an
antecedent session we passed a law on this subject. The gentleman may
have given his vote for this law under the impression he states, but it
does not follow that the Legislature acted under the same impression; on
the contrary, I know several gentlemen who voted for it, though hostile
to the claims under the act of 1795, because it contained a general
provision for claims, and did not particularly recognize those arising
under the act of 1795; and now, because Congress have passed an act of
a general nature, when it was notorious there are a variety of claims
besides those under the act of 1795, and none of which are mentioned
either in the compact or treaty with the State of Georgia, it is said
we have given a pledge, and we are called upon to fulfil it. And this
language is held by gentlemen who, in the same breath, have expressed a
disposition to reject another description of claims. Could absurdity
speak in stronger language? A general appropriation has been made by
Congress for claims; the claims preferred are of two classes--those
under the acts of 1789 and 1795. There might have been claims of a
hundred other descriptions--for all these Congress have made a general
appropriation--and yet we are told by gentlemen hostile to the claims of
1789 that we are pledged to provide for those of 1795. If we are pledged
to satisfy one description, are we not equally pledged to the other? But
the truth is, we have given no pledge. If we have, nothing is so easy
as to refer to the statute book, and to point it out. No such pledge
is recognized by our compact with Georgia. While I am up, permit me to
say, if the compact with Georgia be construed according to its letter,
the appropriation of $5,000,000 ought to be considered as not embracing
claims under the act of 1795, for the best reason in the world: the
statute book of Georgia shows the reason. But, say gentlemen, we possess
the power to satisfy these claims, though such satisfaction may not have
been contemplated by our compact with Georgia. There must, say they,
have been an understanding between the Commissioners of Georgia and our
Commissioners in favor of compromising them, and therefore it is inferred
that we ought to be governed more by the _quo animo_ with which the
compact was formed than by its strict letter; it is accordingly attempted
to be proved, that there was an understanding between our Commissioners
and those of Georgia, that relief should be extended to claimants under
the act of 1795. I am authorized by the Commissioners to say that this
was not the case. Whether, therefore, we are governed by the strict
letter of the contract, or by the _quo animo_, we cannot discover the
grounds for this opinion. I have been told, in a way which removes all
doubts, by the Commissioners on both sides, at least by a Commissioner of
the United States having a great participation in the business, and by
the Georgia Commissioners, that the stipulation in the compact was not
inserted at the instance of Georgia, but reluctantly inserted by them at
the instance of the Commissioners of the United States.
Mr. MACON (Speaker) remarked that this question, like many others
which presented themselves, had taken up a long time in discussing the
preliminary point that might have been required on the resolutions. To
rise and report the bill, without acting on the resolutions, would be
a virtual rejection of them; especially as the House had determined to
rise on the 19th. For one, Mr. M. said, he was ready to vote on the
resolutions. If it were wrong to vote on them, it was certainly proper
to vote against their reference. But why not vote on them? We may not
all agree; but have we not a right to think for ourselves? Let us then
meet them, and vote as we see best. Mr. M. said he was more desirous of
meeting the question, as he differed from those with whom he generally
coincided in opinion. It may be said the resolutions embrace an abstract
question. If so, gentlemen ought not to have allowed their reference.
In the present stage of the business, no question could be taken unless
in the committee, or on a motion to discharge the committee from their
further consideration. Mr. M. said, he thought it the right of every
member of a deliberative body to express his sentiments and record his
opinion on any subject before it. This had always been the practice. He
trusted, therefore, the committee would not rise, but proceed to the
discussion of the resolutions.
Mr. J. RANDOLPH.--I little expected to stand on this floor, in the list
of persons hostile to State rights--to be charged, as the gentleman
before me has expressed himself, with having brought forward propositions
subversive of the rights of the States. The sovereignty of the States
has ever been the cardinal principle of my political opinions, and in
the outset, I enlisted under the banner of State rights in opposition to
federal usurpation. The doctrine of exalting the General Government on
the ruin of the authority of the States, is at length exploded, and those
who have heretofore been most conspicuous in encroaching upon the rights
of the States, generally, and upon those of Georgia in particular, are
now foremost in displaying their zeal for both. I cannot but rejoice at
the acquisition which this cause has made. But to those of its friends
who are too new to it to understand its interests as yet, I would
recommend, that they would take the conduct of the Georgia delegation
as an evidence of the rights and interests of that State. They surely
are not so destitute of information or fidelity, as to misunderstand or
abandon the rights of the people whom they represent.--So long, however,
as I have the honor of concurring with them in opinion, I shall be very
easy under any clamor which the new friends of Georgia and of the rights
of States may endeavor to excite. If, however, gentlemen are unwilling
to rely on the opinions of so few, however respectable men, I refer them
to the act of the Legislature of Georgia herself, generally called the
rescinding act, passed under circumstances of unparalleled unanimity, and
confirmed by the general voice of the people, who subsequently recognized
it in, and ingrafted it upon their constitution. If still they remain
dissatisfied, I would ask them if the recognition of the claims against
Georgia, in the bill which they are so eager to pass, be not equally
a violation of the rights of that State, with the rejection of those
claims. Does not the bill before you, in pronouncing upon the validity of
the act of Georgia, equally involve the principle against which gentlemen
protest so loudly, with the resolutions themselves? They have their
choice either to pronounce the corrupt act of 1795, or the rescinding act
of 1796, invalid. Are not the rights of Georgia as much affected by the
one as by the other? and even more, by annulling the act of 1796, since
she alone recognizes that to be her own.
Here Mr. R. read the first and second resolutions:
“_Resolved_, That the State of Georgia was at no time invested
with the power of alienating the right of soil possessed by the
good people of that State in and to the vacant territory of the
same, but in a rightful manner and for the general good.”
Who will deny it? If Georgia has made a valid contract we must execute
it. If invalid, there is no obligation on us to perform it.
“That when the governors of any people shall have betrayed
the confidence reposed in them, and shall have exercised that
authority with which they have been invested for the general
welfare, to promote their own private ends, under the basest
motives, and to the public detriment, it is the inalienable
right of a people, thus circumstanced, to revoke the authority
thus abused, to resume the rights thus attempted to be
bartered, and to abrogate the act thus endeavoring to betray
them.”
I am afraid if we deny this position we have no title to show for our own
existence as a nation.
Mr. R. here read the third resolution:
“That it is in evidence to this House that the act of the
Legislature of Georgia passed on the 7th of January, 1795,
entitled an act &c., was passed by persons under the influence
of gross and palpable corruption, practised by the grantees
of the lands attempted to be alienated by the aforesaid
act, tending to enrich and aggrandize, to a degree almost
incalculable, a few individuals, and ruinous to the public
interest.”
If there be any objection in my mind to this resolution, it is that
it does not sufficiently detail what it contains in substance; that
the vendors of this iniquitous bargain being at the same time the
vendees, the contract was therefore void. On a former occasion, when
this position was advanced, we were told that, on the same principle,
the sale of our western lands might be set aside, since members of the
Legislature speculated in them to a vast amount. However indecorous
and reprehensible this may have been in persons in their situation;
there was a wide and material difference between the sales made by the
United States and a pretended sale like this--not of a few acres, but
of millions; not of sections and half sections, but of thousands of
square miles; not measured by chains and perches, but by circles of
latitude and longitude; not made in the face of day, on public notice,
for a reasonable equivalent, and with the general participation of the
citizens, but bartered away in the dark by wholesale for the emolument
of the partners in the job, for a pretended consideration too paltry to
give an air of validity to the contract; and even this sum, pitiful as
it was, had since been drawn from the treasury of Georgia by those who
had paid it, or others claiming under them by an act yet more infamous
and disgraceful if possible than that by which it was deposited there.
But it is not my intention at this time to enter into the particulars
of this transaction. In the former stages of this bill I have endeavored
to give a faithful history of it. Weak and vain, however, must be every
effort to do justice to this enormous and atrocious procedure. Some
gentlemen indeed will tell you that we have no proof of these facts. The
depositions are _ex parte_, say they, and therefore in strictness of law
cannot be considered as evidence. But when was it known that men could
not legislate on less than legal evidence? Have we not the same evidence
of the fraud that we have of the existence of the claims? Are not the
evidences of both in the same report? the same proof of the corruption
as of the claims? They both hang together. Do not gentlemen themselves
admit the existence of the corruption? On what other principle could
they justify their proposition to withhold from these harpies the whole
of their glorious booty, and put them off with a comparative pittance?
Set aside the evidence of the corruption, and it cannot be denied, that
instead of five, they are entitled to fifty millions of acres. I repeat
they are entitled to all or nothing. We at least are consistent, we deny
their title to anything, and we propose to give them nothing. Gentlemen
on the other side can support the claim to the five millions, which they
propose to give, only by arguments which justify a claim to ten times
that amount.
Mr. R. here read the fourth resolution:
“That the good people of Georgia, impressed with general
indignation at the act of atrocious perfidy and unparalleled
corruption, with a promptitude of decision highly honorable
to them, did, by the act of a subsequent Legislature, passed
on the 13th day of February, 1796, under circumstances of
peculiar solemnity, and finally sanctioned by the people, who
have subsequently ingrafted it on their constitution, declare
the preceding act and the grants made under it, in themselves
null and void; that the said act should be expunged from the
records of the State and publicly burnt--which was accordingly
done--provision at the same time being made for restoring
the pretended purchase money to the grantees, by whom, or by
persons claiming under them, the greater part of the said
purchase money has been withdrawn from the treasury of Georgia.”
This is another of the resolutions not even substantially embraced in
the proffered amendment, which has been rejected by the committee. The
evidence of the facts contained in the former part of it is to be found
in the act of Georgia, which I hold in my hand, commonly called the
rescinding act. The report of our Commissioners furnishes the proof
of the withdrawal of the money, with a detailed statement of that
nefarious business, which in the former stages of this bill has been
amply explained. In the rescinding act the Legislature of Georgia take
other objections to the usurpation of 1795, besides those founded on its
corruption. They deny the constitutional right of their predecessors to
have made such an alienation of the public domain, even with honorable
views and for a fair equivalent. They declare that their constitution
prescribes a certain mode whereby vacant lands shall be sold and granted,
and that the pretended act of 1795 is void, not only from its corruption,
but from its contravening those provisions. This is a weighty and vital
objection. The slow yet equitable method known to the Constitution of
Georgia of laying off new counties, granting out the lands, when they
were appropriated and settled, laying off and settling others, was
ill-suited to the gigantic rapacity of the Assembly of 1795, and their
ravenous accomplices, who grasped at every acre within the nominal limits
of the State, whether covered by Indian titles, or whether those claims
were extinguished.
I must beg leave, in answer to the objection of some gentlemen here, to
repeat what was advanced by me in a former discussion of the subject.
Georgia ceded this territory to us subject to certain specified claims,
arising under Great Britain, under Spain, and under her Bourbon act, as
it is commonly called, which has no relation to any of the Yazoo acts,
as they are termed. For these claims we have stipulated to provide,
moreover paying her a certain sum out of the first proceeds of the lands,
as a consideration for the grant. Besides the above-mentioned claims
there were others not recognized by, or provided for, in our compact.
In relation to these, Georgia gives a reluctant assent, (which is to
be inferred as well from the expressions which are used in the treaty,
as from the declaration of the Commissioners on both sides,) that we
may apply, not exceeding five millions of acres to quiet other claims,
generally, without specifying what they are--the appropriation not to
exceed the amount above, and to be made within six months from the
ratification of the compact, or to revert back to Georgia. Among the
claims of this vague description may be ranked those of the Virginia
and South Carolina Yazoo Companies (under the act of Georgia of 1789,
and those arising under the corrupt act of 1795.) We are at liberty,
therefore, to give these reserved five millions of acres to either, or
to both, of those descriptions of conflicting claimants, but we are
certainly not bound to bestow an acre on one of them, either by compact
with Georgia or by our own act of appropriation. When that act passed it
was at the close of our session; there was not time to investigate any of
these claims. It was then understood that some of them were equitable,
and not founded in corruption. If we had not then made the appropriation,
the term within which we were permitted to make it, would have elapsed
before the next session of Congress. We therefore made the appropriation
in the same general terms of our compact with Georgia, pledging
ourselves to none, while we thereby reserved the right of examining and
recompensing all, in case they should thereafter be found to deserve
it. The day of investigation having arrived, you are invited to decline
it altogether, and hold that the reservation of the right to give, is
converted by some political magic into a duty, and that too by those who
propose to give nothing to the companies of 1789, although their claim is
embraced by the general provision of our compact with Georgia, and by the
terms of our act of appropriation as much as the claims of the companies
of 1795.
FRIDAY, March 9.
_Government of Louisiana._
The House went into a Committee of the Whole on the bill for the
government of Louisiana. The fifth section being read, as follows:
“SEC. 5. The judicial power shall be vested in a superior
court, and in such inferior courts, and justices of the peace,
as the Legislature of the Territory may, from time to time,
establish. The judges of the superior court, and the justices
of the peace, shall hold their offices for the term of four
years. The superior court shall consist of three judges,
any one of whom shall constitute a court. They shall have
jurisdiction in all criminal cases, and exclusive jurisdiction
in all those which are capital, and original and appellate
jurisdiction in all civil cases of the value of one hundred
dollars. Its sessions shall commence on the first Monday of
every month, and continue till all the business depending
before them shall be disposed of. They shall appoint their own
clerk. In all criminal prosecutions which are capital, the
trial shall be by a jury of twelve good and lawful men of the
vicinage; and in all cases, criminal and civil, in the superior
court, the trial shall be by a jury, if either of the parties
require it. The inhabitants of the said Territory shall be
entitled to the benefits of the writ of _habeas corpus_; they
shall be bailable, unless for capital offences, where the proof
shall be evident, or the presumption great; and no cruel and
unusual punishment shall be inflicted:”
Mr. G. W. CAMPBELL moved to strike out “which are capital, the trial
shall be by a jury of twelve good and lawful men of the vicinage; and in
all cases, criminal and civil, in the superior court, the trial shall
be by a jury, if either of the parties require it,” and to insert “the
trial shall be by jury, and in all civil cases above the value of twenty
dollars.”
Mr. C. said he conceived that in legislating for the people of Louisiana,
they were bound by the Constitution of the United States, and that
they had not a right to establish courts in that Territory on any
other terms than they could in any of the States. Wherever courts were
established in a Territory, they must be considered as courts of the
United States, and of consequence cannot be otherwise constituted than
as courts in the States. The constitution expressly declares that, in
criminal cases the trial shall be by jury, and in all civil cases where
the sum in controversy exceeds the value of twenty dollars, the trial
shall be likewise by jury. In the ninth article of the amendments to the
constitution, we find the following words: “In suits at common law where
the value in controversy shall exceed twenty dollars, the right of trial
by jury shall be preserved.” The eighth article says: “In all criminal
prosecutions the accused shall enjoy the right to a speedy and public
trial by an impartial jury.”
I will observe that the right of trial given by this section, to wit: “if
either of the parties require it,” is a dangerous mode of proceeding, and
may tend unwarily to entrap them. The person brought before the court for
a misdemeanor, asked if he requires a jury trial, may be ignorant of the
evidence, and may not know the benefits of a trial by jury; he must at
all events show a want of confidence in the court, or waive a jury trial.
If he does the first, he may sour the minds of the court. The party
is thus put in a situation which may be worse than if he was deprived
altogether of the right of a trial, by the necessity of making a choice
which may operate more against him. The bill therefore does not secure
the right of a jury trial, as contemplated by the constitution.
Mr. SLOAN said a few words in support of the motion, which was lost--yeas
20.
[At this stage of the business we attended the trial of impeachment
in the Senate, and cannot with perfect correctness state the further
proceedings of the House on the bill. We understand, however, that the
new section, sometime since offered by Mr. G. W. CAMPBELL, providing
for the election of a Legislature by the people of Louisiana, instead
of their being governed according to the bill from the Senate by a
council appointed by the President, was disagreed to--yeas 37, nays
43.--_Reporter._][9]
SATURDAY, March 10.
_Georgia Claims._
Mr. J. RANDOLPH moved the taking up for consideration the resolution
offered by him on the claims under the act of Georgia of 1795.
Mr. ELLIOT moved the order of the day on the bill for the compromise of
those and other claims.
Mr. GREGG moved to postpone the further consideration of the resolutions
till the first day of December next. He was, he said, perfectly prepared
to act on the bill for the settlement of the claims, and to give it his
decided negative; and should have no objections, but for the lateness
of the session, and the great mass of important business that demanded
attention.
The SPEAKER said, the motion to consider the resolutions, being first
made, must be first put.
It accordingly was put, and carried--yeas 58.
Mr. JACKSON then moved a postponement of the resolutions until the 1st
Monday in December.
Mr. STANFORD inquired whether the motion of postponement was not
susceptible of a division, so as to apply to each resolution separately.
Mr. J. RANDOLPH hoped the question would be so taken.
Mr. RODNEY expressed the same wish, and that the yeas and nays might be
taken on each division of the question. He was opposed to a postponement.
He should not have risen at this late period but for the warm opposition
the resolutions had received from various quarters, and but for his
desire to avail himself of the opportunity to state his reasons for
giving them a firm support.
It is objected to these resolutions that they are abstract propositions.
By abstract principles, I understand axioms unapplied. But when they
are applied to facts, they cease to be considered in the abstract. In
geometry there are certain elementary principles which are the basis of
all reasoning on any proposition in that department of science. So in law
there are principles in the abstract while they remain unapplied, and
which bear in every case where facts admit of their application. So in
politics certain principles are held sacred, either in the view of right,
or in relation to the constitution of a State. But when these principles
are applied to a given state of things, they cease to be abstract. In
the Declaration of Independence there are several abstract principles,
such as “that all men are free,” &c. But when applied to a certain state
of things, they are no longer abstract. I apprehend, therefore, that my
worthy friend from Pennsylvania will, on more mature reflection, perceive
that the principles contained in the resolutions bearing on facts cease
to be abstract; on facts which it is necessary for us to decide, and
against examining the consequences of which no reason can be urged. But,
says another gentleman, we have no jurisdiction in the case; we have
nothing to do with the act of Georgia of 1795; we have no authority
over it. I confess myself really surprised to be assured, over and over
again, that the act of 1795 which gives the House all this trouble, is
the corner stone of the present claims, and without which there would
not be a shadow of claim, is not to be considered as blended with our
proceedings. What! when we are called upon to compromise claims, are we
not to go to the cause, to the fountain source, and decide whether they
have, or have not, a foundation in justice? Put the act of 1795 out of
the way, and would we have ever heard of this compromise? Remove it, and
would we have a single claimant before us soliciting a compromise? I
consider the act, to Georgia, as involving the all-important point; as
intimately and indissolubly blended with the question before us. That
question is whether we will consent to give five millions to effect a
compromise of claims, directly emanating from the act of 1795; and then,
as an incidental question, we are obliged to look at the act of 1795.
If the House have authority over the main question, _ex vi termini_,
they have authority over every question incidental to it; and common
sense teaches us that it is absolutely necessary to determine on the
validity of the act of 1795, in order to decide the justice or policy of
compromising claims arising out of it.
Having settled, as I conceive, these preliminary points, I will call the
attention of the House to the great point on which their decision must
turn. Either the act of 1795 or of 1796 is in force. If that of 1795 is
in force the claimants have a legal title to unascertained millions. If
that act is not binding, they have no claim at all. If that act is of
no authority, there is an end of their title. The tree is cut up by the
roots, and all its branches fall. They have either then a title to fifty
millions, or they have no title at all. Their case cannot be compared to
a common saying, which declares half a loaf better than no bread.
Now let us compare these facts and reasonings with the resolutions. When
I rose I intended to have taken them up in order, but as I have been
diverted by the course of the argument, I shall pursue the track I have
taken. One of the resolutions states “that a subsequent legislature of an
individual State has an undoubted right to repeal any act of a preceding
legislature, provided such repeal be not forbidden by the constitution of
such State, or of the United States.”
This is, I think, a plain and clear axiom. Both legislatures flow from
the same source, and are armed with equal powers. What one legislature
can do, another may undo, if the interest of the public prescribes it. I
know an ingenious distinction is taken, as to the power of a legislative
body, between municipal acts and those constituting contracts. The
distinction holds to a certain degree as to expediency, but not as to
power. When a legislative body forms a contract, it is a solemn thing,
and it ought not to be touched, except when the private evil arising from
its being annulled should rather be endured than the public calamity
arising from its continuance. But still the position of the resolution is
perfectly tenable. What one legislature has done another may undo; what
one has enacted, a subsequent one may repeal.
Let us examine whether there is any thing in the rescinding act of
Georgia at variance with the constitution of that State, or the
Constitution of the United States. The whole course of the business
shows the previous act to have been a violation of the Constitution of
Georgia. The Constitution of the United States declares that no State
“shall pass any _ex post facto_ law, or law impairing the obligation of
contracts.” That no contract has been impaired, is evident from attending
to the sense of the word. I know of no contract formed, either in a
legal or equitable sense. Did the Constitution of Georgia authorize her
Representatives to rob the people of their property? Or did it authorize
them only to dispose of it for their welfare? If they had a right to
dispose of it in a wrongful manner, it knocks up the argument at once. If
they were vested with a right to rob and plunder their constituents, I
give up the point. But until this is shown I shall remain of opinion that
they only had the right of disposing of it for the general good. I am not
about to travel through the fruitful wilderness of inquiry disclosed in
the progress of this affair. But gentlemen say that we have no evidence
of corruption. What do they want more than we possess? The whole business
has been referred to a set of Commissioners, whose comprehensive powers
embraced an investigation of every claim. They have fully examined the
claims under the act of 1795, and they have reported that--
“A comparison of the schedule annexed to the articles, and
which is declared to be a part of the agreement, with the yeas
and nays on the passage of the act authorizing the sale, (E.)
shows that all the members, both in the Senate and House, who
voted in favor of the law, were, with one single exception,
(Robert Watkins, whose name does not appear,) interested in,
and parties to, the purchase.
“The articles of agreement, and list of associates of the
Tennessee company, which have been voluntarily furnished by
one of the trustees, show that a number of the members of the
Legislature were also interested in that company.”
This stubborn fact appears on the face of a report made by persons
duly authorized to investigate the whole transaction. The fact is
indisputable, and ought to satisfy the most reluctant and unwilling mind
of the enormity of the corruption attending this business. It is fully
satisfactory to my mind. But it is said that this statement is founded
on _ex parte_ depositions, and that no opportunity has been allowed to
cross-examine the witnesses. But where were they taken? In Georgia;
in probably the same House that witnessed the scene of disgrace; by a
tribunal competent to take them and to inquire into facts.
Upon the whole, it appears to me most evident, on referring to the acts
of Georgia, the articles of cession, and the laws of Congress, that the
claims under the acts of Georgia have no validity. If, therefore, we give
any thing, it must be from compassion, and not from the obligations of
justice. Let the House, ere it do this, reflect whether there are not
objects in the country equally worthy of their compassion. Let them
visit the straw shed of the war-worn soldier who bled in the defence
of our rights; the comfortless hut of the widow who lost her husband
in battle. With but little search we shall find a mountain of claims
that overhangs the justice of the country. If, after this view, we
shall consider any unfortunate victims of injustice in this transaction
entitled to compassion, I will agree to go as far as any man in affording
them relief. But were we as rich as Crœsus, I would first administer
relief to the Belisariuses of our country. Let us be just to these before
we are generous to other descriptions of claimants.
Mr. T. M. RANDOLPH.--Mr. Speaker: I hope the House will not consent to
postpone these resolutions. I hope it will, on the contrary, immediately
proceed to consider them, and conclude by adopting them, for, taken
generally, they meet my warm approbation as to the principles they lay
down, and I am anxious to see the last one, which is the fair corollary
of the other, incorporated into the bill now before us.
My opinion is, that it will cast a broad stain on the American character,
as it must be exhibited in future history, for this body which represents
it to grant compensation for their pretended losses, under whatever form
ingenuity may invent to disguise it, to any of those adventurers who made
the spurious contract with Georgia in the year 1795, for the purchase of
her western territory, upon the ground that the fictitious bargain gave
the least shadow of title to any part of that territory. This opinion is
a conviction irresistibly given to my mind by an impartial investigation,
that what were at that time called companies of land adventurers, were,
with the exception of one or two misled individuals, whose delusion and
consequent implication I lament, no other, in their conduct on this
occasion, than shameless bands of sharpers; what was impudently called a
contract, was, in reality, a fraud of unprecedented enormity, and what
has since been declared an unjust interposition of the primary sovereign
authority of the State, to cancel a fair bargain, was no more than the
regular and proper application of the only sufficient means which could
be used to redress a cheat upon the people of Georgia of unparalleled
audacity and magnitude. I am sorry, by entertaining this opinion, to
differ with so many on this floor, with whom it is my pride to think;
but I am not much surprised at that difference. Very rarely, indeed,
have I heard of important questions which did not divide opinions; never
have I been at a criminal trial where numbers did not doubt the reality
of the crime. Such is the difference in the impression made by the same
testimony upon different minds. Were it not for this extraordinary
circumstance in our nature, which almost precludes unanimity, and which
completely defies explanation upon any general principles of the moral
structure of man, there would be but one sentiment in this House upon the
question now before it. The information which has satisfied my mind, I
have derived from the declarations of the counties of Georgia, in their
petitions and remonstrances presented to the convention of that State,
which assembled in the month of May, 1795; from the acknowledgment made
by that convention of the dignity of those applications, and the respect
due to them, in the resolve which referred the matter they contained to
the consideration of the succeeding Legislature; from the proceedings
of the General Assembly of 1796, upon that matter, and the evidence
it collected and recorded relative thereto; and, lastly, from certain
declarations and provisions confirming those proceedings, and thereby
establishing that evidence, which were made by the convention of 1798,
and which exist now in the body of the present Constitution of Georgia.
The same means of information are within the reach of all; I ought to
say, should be possessed by all; I might say, should be satisfactory to
all; since the witnesses are the great body of the people of one of our
respectable States, and the testimony is authenticated, confirmed, and
preserved, as well by the constitutional as the ordinary code of that
State.
It has not been my object in making this inquiry, to learn in what
deep sharper’s brain this scheme was first engendered, which of the
associates stood most prominent in the development and execution of
it, how the price paid for the flagrant treason against posterity was
apportioned, or how the spoil obtained by such a stupendous larceny,
committed upon the inheritance of the unborn, was divided. I have not
desired to know, and it would be unimportant to the House to be informed,
which of the associates had no moral sense at all, whose conscience was
subdued by his avarice, or who, unthinkingly, gave the control of it
into the hands of his friend. I desire not to see any name consigned
to infamy; of those which have come to my knowledge, one or two I yet
respect; the remainder have not more distinct images annexed to them,
in my mind, than those of the men who conceived and executed the South
Sea cheat in England, or the Mississippi fraud in France. But, from the
investigation I have made, I have learned, as certainly as the actions
of men can be known to others than the actual beholders of them, that
the Legislature of Georgia, which commenced its session in the autumn of
1794, was assailed by every possible artifice of seduction, to procure
from it the act of 7th January, 1795, which constituted what has since
been impudently called the Yazoo contract. That it yielded to those
artifices, and a considerable majority of its members became treacherous
to their constituents, and deaf to the voice of their honor. That bribes
were daringly offered and unblushingly received for votes in favor of
the land. That the property of the State of Georgia, to the amount of
forty millions of dollars, at the most reasonable estimate, was sold
by those trustees of the people of Georgia for one half million, and
purchased by the sellers themselves in combination with certain abject
worshippers of gold, who had artfully infused into them their blind
fanaticism. That another offer of four-fifths of a million, made by other
men at the same time, was rejected, because the Legislature itself was
concerned in the first. That the Chief Magistrate of the State, after
one feeble effort of resistance, and a declaration which ought to have
bound him to an obstinate opposition, with a conduct which, to my mind,
manifests a thorough knowledge of the corrupt views of the Legislature,
as well as a want of energy to defeat them, yielded to the impulse, and
ratified the fraudulent sale. That the moment his irresolute hand gave
the illusive sanction to the vain and ineffectual deed, this ravenous
pack of speculators, keen with the hunger of avarice, unkennelled and
scoured the whole peopled territory of the Union in quest of their
appropriate game--the simple, the credulous, and those who are hoodwinked
by the excess of their own cupidity. The most voracious of them sought
the great cities, where numbers of the thirsty sons of gain became their
prey, while numbers more joined in the promising chase, led the way
to the victims, and fattened on their spoil. Many, more fell in their
nature, though less keen in their appetites for gold, traversed the
tranquil country of New England, scenting the homely purses which hung
in the smoky corner of peaceful cottages, into which the solitary dollar
had been dropped with religious punctuality every week, perhaps every
month only, by the hand of the provident father, from the time when the
first birth under his roof gladdened his heart. Great numbers of these
receptacles of hard-earned gain, with all their rusty treasure, the fruit
of long continued industry and frugality, destined to ensure to many of
the rising race the innocent joys of a life of wholesome exertion in
their own fields, were devoured by them, and that happy destiny in a
moment changed for a short period of certain pain, and, too probable,
vice, in the moving prisons of the ocean.
The promulgation of the law produced one general murmur of indignation
throughout the State of Georgia. The crime committed by the
Representatives of the people was strongly denounced by the grand juries
of all the succeeding courts. An assembly of special Representatives,
which had been summoned for constitutional purposes, meeting in the
succeeding spring, was addressed by all the counties of the State, and
by nearly the whole people of it, with memorials, remonstrances, and
petitions, according to the different degrees of excitement, all setting
forth in strong terms the nefarious act; complaining with bitterness
of the perfidy of the Legislature, requiring, urging, and imploring
the convention to proclaim the fact, and annul the fraudulent sale. No
laborious investigation into the huge and naked scheme of speculation,
no troublesome search after testimony to expose the framer of it was
necessary. Nothing was requisite but to receive, condense, and record
the decisive evidence voluntarily offered from all quarters. But this
legitimate and easy task the convention, naturally enough, thought fit
to decline, as many of its members were themselves openly concerned, and
many more secretly interested in the purchase. The pack of speculators
were then in full cry, the game were falling abundantly into their
jaws; it could scarcely be expected that those who had contributed so
much to set this chase on foot, who expected to share so largely in its
profits, should sound the horn of alarm to the objects of it. It quickly
occurred to a majority of this body, that a reference of these addresses
to the Legislature of the next year, would not only give time for the
continuance of the chase, but might be productive of something like
safety in the after possession of the spoils of it; while it promised
to afford some shield against the popular discontent and indignation
which a total neglect, so desirable to themselves, must inevitably have
brought on them. Notwithstanding, before midsummer of the same year,
the fraudulency and consequently invalidity of the sale must have been
unequivocally known throughout the Union, by the ferment in the State of
Georgia. Early in the succeeding year all the records of State relative
to this transaction were burned, and all recorded evidences of private
contracts which had arisen out of the land were cancelled, destroyed,
and forbidden to be renewed or afterwards admitted in the courts by the
Legislature acting under the authority to consider the matter, and of
course the power to redress the complaint of the petitions, which had
been given to it by the convention, and also under the express injunction
of the people themselves, laid on the individual members of that body at
the elections. But the speed of the sharpers had outstripped the slow
step of the State. They had, in a great measure, executed their swindling
scheme; a number of their dupes were already, instead of amusing their
own credulity, insincerely, and I will say, insolently, accusing the
perfidy of Georgia.
The question was then taken by yeas and nays on the postponement, until
the first Monday of December, of the following resolution:
“_Resolved_, That the Legislature of the State of Georgia were,
at no time, invested with the power of alienating the right of
soil possessed by the good people of that State, in and to the
vacant territory of the same, but in a rightful manner, and for
the public good:”
And passed in the negative--yeas 51, nays 52.
So much of the said original motion as is contained in the second clause
thereof, being again read, in the words following, to wit:
“That, when the Governors of any people shall have betrayed the
confidence reposed in them, and shall have exercised that authority with
which they have been clothed for the general welfare, to promote their
own private ends, under the basest motives, and to the public detriment,
it is the inalienable right of a people, so circumstanced, to revoke
the authority thus abused, to resume the rights thus attempted to be
bartered, and to abrogate the act thus endeavoring to betray them:”
The question was taken that the House do agree to the motion for
postponement of the said second clause of the original motion; and
resolved in the affirmative--yeas 52, nays 50.
So much of the said original motion as is contained in the third clause
thereof, being twice read, in the words following, to wit:
“That it is in evidence to this House, that the act of the
Legislature of Georgia, passed on the seventh of January, 1795,
entitled ‘An act for appropriating a part of the unlocated
territory of this State, for the payment of the State troops,
and for other purposes,’ was passed by persons under the
influence of gross and palpable corruption practised by
the grantees of the lands attempted to be alienated by the
aforesaid act, tending to enrich and aggrandize, to a degree
almost incalculable, a few individuals, and ruinous to the
public interest:”
The question was taken that the House do agree to the motion for
postponement of the said third clause of the original motion; and
resolved in the affirmative--yeas 54, nays 49.
So much of the said original motion as is contained in the fourth, fifth,
sixth, and seventh clauses thereof, being again read, in the words
following, to wit:
“That the good people of Georgia, impressed with general
indignation at this act of atrocious perfidy and of
unparalleled corruption, with a promptitude of decision highly
honorable to their character, did, by the act of a subsequent
Legislature, passed on the thirteenth of February, 1796, under
circumstances of peculiar solemnity, and finally sanctioned
by the people, who have subsequently ingrafted it on their
constitution, declare the preceding act, and the grants made
under it, in themselves null and void; that the said act should
be expunged from the records of the State, and be publicly
burnt, which was accordingly done; provision at the same time
being made for restoring the pretended purchase-money to the
grantees, by whom, or by persons claiming under them, the
greater part of the said purchase-money has been withdrawn from
the treasury of Georgia.”
“That a subsequent Legislature of an individual State has an
undoubted right to repeal any act of a preceding Legislature;
provided such repeal be not forbidden by the constitution of
such State, or of the United States.”
“That the aforesaid act of the State of Georgia, passed on the thirteenth
of February, 1796, was forbidden neither by the constitution of that
State, nor by that of the United States.”
“That the claims of persons derived under the aforesaid act of the
seventh of January, 1795, are recognized neither by any compact between
the United States and the State of Georgia, nor any act of the Federal
Government.”
The question was taken that the House do agree to the motion for
postponement of the said fourth, fifth, sixth, and seventh clauses of the
original motion; and resolved in the affirmative--yeas 53, nays 50.
And then the residue of the said original motion, contained in the eighth
and last clause thereof, being twice read, in the following words, to
wit:
“_Therefore, Resolved._ That no part of the five millions
of acres reserved for satisfying and quieting claims to
lands ceded by the State of Georgia to the United States,
and appropriated by the act of Congress passed at their last
session, shall be appropriated to quiet or compensate any
claims derived under any act, or pretended act of the State of
Georgia, passed, or alleged to be passed, during the year 1795:”
The question was taken that the House do agree to the motion for
postponement of the said residue of the original motion; and resolved in
the affirmative--yeas 54, nays 51, as follows:
YEAS.--Willis Alston, jun., Simeon Baldwin, Silas Betton, Phanuel Bishop,
John Campbell, William Chamberlin, Martin Chittenden, Clifton Claggett,
Jacob Crowninshield, Manasseh Cutler, Richard Cutts, Samuel W. Dana, John
Davenport, John Dawson, William Dickson, Thomas Dwight, James Elliot,
Ebenezer Elmer, William Eustis, William Findlay, John Fowler, Andrew
Gregg, Gaylord Griswold, Roger Griswold, Seth Hastings, William Helms,
David Hough, Benjamin Huger, Nehemiah Knight, Henry W. Livingston, Thomas
Lowndes, Matthew Lyon, Nahum Mitchell, Samuel L. Mitchill, Jeremiah
Morrow, Joseph H. Nicholson, Thomas Plater, Erastus Root, Tompson J.
Skinner, John Smilie, John Cotton Smith, Joseph Stanton, William Stedman,
James Stephenson, Samuel Taggart, Samuel Tenney, Samuel Thatcher, David
Thomas, Killian K. Van Rensselaer, Joseph B. Varnum, Daniel C. Verplanck,
Peleg Wadsworth, Lemuel Williams, and Marmaduke Williams.
NAYS.--Isaac Anderson, David Bard, George Michael Bedinger, William
Blackledge, Adam Boyd, Robert Brown, Joseph Bryan, William Butler, Levi
Casey, Joseph Clay, Matthew Clay, John Clopton, Frederick Conrad, John B.
Earle, James Gillespie, Peterson Goodwyn, Thomas Griffin, Samuel Hammond,
John A. Hanna, Josiah Hasbrouck, James Holland, William Kennedy, Michael
Leib, Joseph Lewis, jun., Andrew McCord, David Meriwether, Andrew Moore,
Nicholas R. Moore, Anthony New, Thomas Newton, jun., Gideon Olin, Beriah
Palmer, John Randolph, Thomas M. Randolph, John Rea of Pennsylvania,
Jacob Richards, Cæsar A. Rodney, Thomas Sammons, Thomas Sanford, Ebenezer
Seaver, James Sloan, John Smith of Virginia, Henry Southard, Richard
Stanford, John Stewart, Philip R. Thompson, Abram Trigg, Isaac Van Horne,
Matthew Walton, Richard Wynn, and Joseph Winston.[10]
WEDNESDAY, March 14.
_Government of Louisiana._
The House went into a Committee of the Whole on the bill from the Senate,
providing for the government of Louisiana.
Mr. SLOAN moved an amendment, inhibiting the admission of slaves into
Louisiana, as well from the United States as from foreign places.
Mr. S. concisely stated his reasons in favor of this provision, when the
question was taken, and the amendment agreed to--ayes 40, noes 36. Mr.
G. W. CAMPBELL proposed an amendment, withholding from the parties to a
civil suit the right of waiving a jury trial. The bill provides a jury
trial in all cases in which either party shall require it.
This amendment, after being supported by Mr. G. W. CAMPBELL, and opposed
by Messrs. HOLLAND, SOUTHARD, and DANA, was negatived--ayes 12.
Mr. G. W. CAMPBELL moved to strike out that part of the bill which
renders every person settling on lands of the United States liable to a
fine of one thousand dollars, and to one year’s imprisonment.
This produced a debate of some length and more animation, in which the
motion to strike out was urged by Messrs. G. W. CAMPBELL, LYON, and
CLAIBORNE; and opposed by Messrs. GREGG, NICHOLSON, BOYD, SMILIE, MACON,
SLOAN, and HOLLAND.
The question was taken, and the amendment was negatived--ayes 23.
SATURDAY, March 17.
_Government of Louisiana._
The bill erecting Louisiana into two Territories, and providing for the
temporary government thereof, was read the third time.
Mr. DAWSON moved a recommitment of the bill for amendment.
Mr. ALSTON was against a general recommitment of the bill, but friendly
to a recommitment for the purpose of limiting its duration.
Messrs. NICHOLSON, SMILIE, EARLY, and S. N. MITCHILL, opposed the
recommitment.
Mr. BEDINGER advocated the recommitment.
The motion to recommit was then negatived--ayes 39, noes 43.
Mr. ALSTON said, if there was no objection, he would move the insertion
of a clause to limit the period of the bill, on account principally of
the great powers conferred on the Executive.
This motion being objected to, by Mr. LYON, was declared out of order.
The question was then put on the passage of the bill.
Messrs. LYON, SLOAN, JACKSON, and BEDINGER opposed, and Mr. SMILIE
supported its passage.
Mr. VARNUM moved to recommit, for amendment, that part of the bill that
vests equity powers in the courts of Louisiana.
Motion negatived--ayes 39, noes 44.
A motion was made to recommit the fourth section, which was lost--ayes 15.
Mr. BEDINGER moved to recommit the last section for the purpose of
obtaining a limitation to the act.
Motion carried--ayes 52.
The House went into a Committee of the Whole on the last section,
When Mr. NICHOLSON moved an amendment limiting the act to two years, and
to the end of the next session thereafter.
Mr. BEDINGER said, he would like its limitation to one year better, but
would, if it were the sense of the House, be satisfied with two years.
Mr. NICHOLSON’s motion was agreed to without a division.
The House agreed to the amendment; when the final question was put on
the passage of the bill, and carried in the affirmative by yeas and
nays--yeas 66, nays 21, as follows:
YEAS.--Willis Alston, junior, Isaac Anderson, David Bard,
George Michael Bedinger, Walter Bowie, Adam Boyd, John Boyle,
Robert Brown, Levi Casey, Thomas Claiborne, Joseph Clay,
Frederick Conrad, Jacob Crowninshield, Richard Cutts, William
Dickson, John B. Earle, Peter Early, Ebenezer Elmer, William
Eustis, William Findlay, James Gillespie, John A. Hanna,
Josiah Hasbrouck, Joseph Heister, William Hoge, James Holland,
Benjamin Huger, Walter Jones, William Kennedy, Nehemiah
Knight, Michael Leib, Andrew McCord, William McCreery, David
Meriwether, Samuel L. Mitchill, Andrew Moore, Nicholas R.
Moore, Thomas Moore, Jeremiah Morrow, Anthony New, Thomas
Newton, junior, Joseph H. Nicholson, Gideon Olin, Beriah
Palmer, Thomas M. Randolph, John Rea of Pennsylvania, John Rhea
of Tennessee, Jacob Richards, Erastus Root, Thomas Sammons,
Thomas Sandford, Ebenezer Seaver, Tompson J. Skinner, John
Smilie, John Smith of Virginia, Richard Stanford, John Stewart,
David Thomas, Philip R. Thompson, Abram Trigg, John Trigg,
Philip Van Cortlandt, Isaac Van Horne, Marmaduke Williams,
Richard Wynn, and Joseph Winston.
NAYS.--John Archer, Silas Betton, Martin Chittenden, Clifton
Claggett, Matthew Clay, John Clopton, Samuel W. Dana, John
Davenport, John Dawson, James Elliot, Gaylord Griswold, Roger
Griswold, Seth Hastings, John G. Jackson, Henry W. Livingston,
Matthew Lyon, Thomas Plater, James Sloan, John C. Smith, Samuel
Tenney, and Lemuel Williams.[11]
WEDNESDAY, March 21.
_Tripolitan War and Mediterranean Fund._
Mr. NICHOLSON, from the Committee of Ways and Means, presented a bill
further to protect the commerce and seamen of the United States against
the Barbary Powers.
[The bill provides that an additional duty of two and a half per centum
be laid upon all imported goods at present charged with a duty ad
valorem, and an additional duty of ten per cent. on all such duties
payable on goods imported in foreign vessels. The proceeds of these
duties are to constitute a fund to be called the Mediterranean fund. The
duties to cease within three months after a peace with Tripoli, in case
the United States are not engaged in war with some other of the Barbary
Powers, in which case they are to cease within three months after a peace
with such powers. The President is authorized to cause to be purchased
or built two vessels of war, to carry sixteen guns each, and as many
gunboats as he may think proper. One million of dollars, additional to
the sum heretofore appropriated, is placed under the direction of the
President for the naval service, which sum he is authorized to borrow at
a rate of interest not exceeding six per cent.]
Mr. NICHOLSON moved that this bill should be made the order for this day.
Mr. R. GRISWOLD moved to-morrow.
The question on “to-morrow” was lost--yeas 33, nays 50, when Mr.
NICHOLSON’s motion prevailed.
_Duties on Imports._
The bill laying more specific duties on certain articles, and imposing
light-money on foreign vessels entering the ports of the United States,
was read the third time.
Mr. HUGER moved its postponement to the first Monday of December, under
the impression that its merits, and the principles it contained, had not
received that full and deliberate examination to which they were entitled.
Mr. J. CLAY observed that a postponement would be virtually a rejection
of the bill.
Mr. MITCHILL concisely advocated the principles of the bill.
Mr. BLACKLEDGE also defended it.
Mr. R. GRISWOLD opposed it, principally on the ground that it increased
the existing rate of duties.
Mr. J. CLAY replied, and allowed that the duties imposed by the bill
would produce more revenue than that heretofore received, but contended
that this would arise from the fraudulent practice heretofore in use
of making out invoices of articles subject at present to ad valorem
duties. In removing this evil, the necessary effect would be an increase
of revenue, not exceeding, however, the probable receipt in case the
invoices were fairly made out.
Mr. HUGER followed, in a speech of considerable length, in which he
contended that the operation of the bill would be to promote the
manufactures of the Eastern and Middle States, to the great detriment of
the Southern States. Principally, though not entirely on this ground, he
declared himself hostile to the bill.
After a few remarks from Mr. BOYD in defence, and of Mr. CLAIBORNE
against the bill, the question of postponement was taken by yeas and
nays, and lost--yeas 40, nays 68.
Mr. KENNEDY moved a recommitment of the motion imposing a specific duty
on printed calicoes and lime.
Motion rejected--yeas 34.
The question was then taken on the passage of the bill, and carried in
the affirmative by yeas and nays--yeas 65, nays 41.[12]
THURSDAY, March 22.
_Protection against the Barbary Powers._
The House resolved itself into a Committee of the Whole on the bill
further to protect the commerce and seamen of the United States against
the Barbary Powers.
Mr. GRISWOLD moved to strike out the first section, which is as follows:
“_Be it enacted, by the Senate and House of Representatives of
the United States of America in Congress assembled_, That, for
the purpose of defraying the expenses of equipping, officering,
manning, and employing such of the armed vessels of the United
States, as may be deemed requisite by the President of the
United States, for protecting the commerce and seamen thereof,
and for carrying on warlike operations against the Regency of
Tripoli, or any other of the Barbary Powers, which may commit
hostilities against the United States, and for the purpose also
of defraying any other expenses incidental to the intercourse
with the Barbary Powers, or which are authorized by this act,
a duty of two and a half per centum ad valorem, in addition
to the duties now imposed by law, shall be laid, levied, and
collected upon all goods, wares, and merchandise, paying a
duty ad valorem, which shall, after the thirtieth day of June
next, be imported into the United States from any foreign port
or place; and an addition of ten per centum shall be made to
the said additional duty in respect to all goods, wares, and
merchandise, imported in ships or vessels not of the United
States, and the duties imposed by this act shall be levied and
collected in the same manner, and under the same regulations
and allowances, as to drawbacks, mode of security, and time of
payment, respectively, as are already prescribed by law, in
relation to the duties now in force on the articles on which
the said additional duty is laid by this act.”
Mr. G. said, that it was much to be regretted that gentlemen had thought
proper, upon this occasion, to connect with the great and ostensible
object of the bill, any provisions which should produce a disunion in
the House. The unfortunate event in the Mediterranean called loudly for
vigorous and decisive measures, and he trusted there would not exist on
the floor a difference of opinion on that point. For himself, he was
disposed to clothe the President with all the power, and to furnish him
with all the means which were necessary to bring the war with Tripoli to
a successful and speedy termination. And when this was done, to make him,
as he ought to be, responsible for the event.
It is always improper, said Mr. G., to connect in the same bill two
subjects which are in their natures distinct; and much more improper upon
this occasion, to tack to the provisions for the Mediterranean service,
upon which there could be no difference of opinion, a new tax, in respect
to which gentlemen could not agree.
The first section of the bill, which he had moved to strike out, imposed
a new tax of two and a half per centum ad valorem on all goods now liable
by law to an ad valorem duty. Goods paying at this time an ad valorem
duty were divided into three classes--the first class was liable to a
duty of twelve and a half per cent.; the second, to a duty of fifteen per
cent.; and the third, to a duty of twenty per cent.
The addition of two and a half per cent. now proposed, would increase
the duties to fifteen, seventeen and a half, and twenty-two and a half
per cent., when the goods were imported in American bottoms; and if they
were imported in foreign bottoms, the duties would be further increased
by the addition of ten per cent.
This view of the import, said Mr. G., will satisfy gentlemen that the
duties are already high, and that the proposed addition will render them
enormous. This step, therefore, ought not to be hazarded, unless the
necessities of the Government are absolutely imperious, and no other
means can be resorted to for obtaining the money.
The proposed tax, if fairly collected, would produce at least $750,000
per annum. This result might be seen from a view of the imports into
the United States of goods now liable to an ad valorem duty. From the
last official report, it appeared that the importation of goods of
that description, amounted in that year to about forty millions of
dollars--the two and a half per cent. on the whole sum would, of course,
produce one million, but, allowing for the drawback of duties on goods
exported, the net revenue could not be less than $750,000. Why, then,
impose a tax of seven hundred and fifty thousand dollars to meet an
expenditure which will not probably exceed four or five hundred thousand
dollars?
Mr. NICHOLSON.--We are now about to authorize a greater expense than
usual, and the Legislature are called upon to provide means for its
discharge. For one, said Mr. N., I can never consent to add to the public
debt, while the resources of the country are adequate to its wants.
These are my ideas; and I feel somewhat surprised at the calculation of
the gentleman from Connecticut, on the expense about to be incurred. He
estimates this expense at $388,000; though yesterday when this subject
was laid before the Committee of Ways and Means, and it was contemplated
to provide $750,000, he moved to strike out $750,000, and insert
$1,000,000. And yet he now tells us that only $388,000 are required.
As to the specie in the Treasury, the gentleman states that on the 1st
of October there were $5,000,000. But with what disbursements is this
chargeable? Out of it there are to be paid American citizens for French
spoliations the sum of $3,750,000 in cash, which must remain in the
Treasury, that just claims may be paid as soon as presented. Under the
British Convention there is to be paid $800,000; and there is likewise
to be paid the interest on Louisiana stock, amounting to $685,000; the
aggregate of which sums is $5,235,000. Not having made this calculation
until the gentleman made his observation, it is possible it may not be
perfectly correct.
When the loss of the Philadelphia was announced, my first inquiry of
the Secretary of the Treasury was what money could be spared from the
Treasury for the prosecution of vigorous measures. His answer was, that
the greatest sum which could be spared would not exceed $150,000. I did
not, like the gentleman, go to the clerks or to the navy yard; but I got
the best information I could.
The gentleman from Connecticut, who appears willing to incur an expense
of a million of dollars, while he is unwilling to provide the means
of meeting it, objects to the mode of raising revenue proposed by the
Committee of Ways and Means, without proposing any other. He objects to
the laying additional duties on imported goods. In his remarks he has
made an erroneous statement of the quantity of goods on which ad valorem
duties are paid. His error has arisen from not deducting the amount of
drawbacks. By an official statement made this session, it will be found
that during the year 1802, goods paying ad valorem duties were as follows:
_Rate._ _Amount._ _Duty._
12½ per cent. $23,377,717 $2,922,214
15 ” 7,888,614 1,183,292
20 ” 439,830 87,966
----------- ----------
Amounting to $34,706,161 $4,193,472
The average duty on goods charged ad valorem is about thirteen and a
half per cent. Let us consider the duties paid by other articles. The
gentleman says in laying duties there is a point beyond which we cannot
go in safety on account of the temptation to smuggling. This is true.
But of all goods imported those chargeable with ad valorem duties are
the most difficult to smuggle. The invoices are made out in the country
from which they are imported. These must be authenticated, and presented
at the custom-house and sworn to. If the collector has any reason to
suspect that there are goods on board of a vessel, not in the entry, he
is to make a thorough examination of the vessel. If he sees a bale in
which he suspects there are goods not stated in the invoice, it is in
his power to have it examined. I believe there is but little smuggling
at this time; but that the articles on which there is most smuggling are
rum and coffee. If the gentleman allows that the duty on articles charged
specifically is not so high as to encourage smuggling to any great or
dangerous extent, he will allow the same in the case of articles charged
ad valorem. The great articles from which revenue is obtained, are
Spirits, which pay an average duty of twenty-nine and two-tenth cents,
and which produce $2,253,496, and cost the importer from twenty-five to
fifty cents per gallon. Spirits which pay twenty-five cents a gallon do
not cost the importer more than fifty cents, and consequently pay a duty
of fifty per cent. on the price of the article. Spirits of the third
proof pay twenty-eight cents, and do not cost more than fifty-six cents
a gallon, which is equal to a duty of fifty per cent. So with spirits
of higher proof. From this article is derived more than a fifth of our
revenue, and yet I never heard the amount of the duty complained of,
until a few days since a petition was presented from the merchants of
Connecticut. It is certain that Congress have never considered it so high
as to encourage smuggling.
Of imported sugars 39,443,814 lbs. are consumed within the United States,
which pay, on an average, a duty of two and a half cents per pound. The
price of brown sugar to the importer is about five or six dollars the
hundred. The duty is therefore between forty-five and fifty per cent. Is
this duty considered so high as to encourage smuggling? If not, shall
gentlemen complain when we are about to lay an additional duty of two and
a half per cent. upon articles now chargeable with duties of from twelve
and a half to twenty per cent.?
Of salt there is consumed 3,244,309 bushels in the United States. It pays
a duty of twenty cents a bushel. In many instances this is equal to the
first cost; and amounts therefore to one hundred per cent.
The consumption of wines amounts to 1,912,274 gallons, and the average
duty is thirty-three cents. The duty on Madeira wine is fifty-eight
cents, and it costs the importer one dollar and twenty-five cents. The
duty therefore amounts to near fifty per cent. If the cost be taken at
one dollar and fifty cents, the duty will be thirty-three and a third per
cent. And yet it is not complained that it encourages smuggling.
The greater part of goods charged ad valorem are woollens, linens,
manufactures of steel, brass, and articles of a similar kind, and
muslins. In a muslin gown the additional duty will make a difference of
about five cents. India muslins cost about fifteen cents a yard, and
English about twenty-five cents. The additional duty will therefore
be about three-eighths of a cent on India, and about three-fourths of
a cent on English muslins. This I consider a burden which no one can
feel. The additional duty on linens will be equally unfelt. In a bale of
osnaburgs, which costs twenty cents, the additional duty on a hundred
yards will not exceed fifty cents. So as to Irish linens and woollens.
The difference in a coarse suit of clothes for a common man will not be
more than twenty-five cents, and that of a better kind will not exceed
one dollar and twenty-five cents. I am surprised, after taking this view
of the operation of the proposed duty, that gentlemen should dwell upon
the great burden it will impose, when it can, in truth, scarcely be felt
by the poorest man in the country. It is indeed of no consideration but
on account of the money raised by it, which I have estimated at about
$750,000.
The gentleman from Connecticut thinks he has discovered in the second
section a design that is not avowed, to wit: to liberate the present
resources from their application to the support of the Navy. I wonder,
however, that the gentleman, before he made this unguarded remark, did
not read the section through. He would then have seen that the fund
established by this act is to exist no longer than three months after
the discontinuance of war in the Mediterranean. Nor is it true that the
whole expenses of the Navy are in the Mediterranean. It is true, that at
this time they are principally there. But there is likewise considerable
expense incurred here in the navy yard on the ships, and on the half-pay
of officers not in actual service. Whence the gentleman deduces the
inference, when the bill itself declares that the new duties shall cease
three months after the end of the war, I am altogether at a loss to
comprehend. The duties are to cease with the occasion which produced
them. When we shall no longer be at war, the war duties will be at an end.
Mr. DANA.--The gentleman from Maryland must surely have committed a
mistake, when he said that there is no measure proposed on his side
of the House which does not meet with opposition. When the President
considered vigorous measures necessary against the Emperor of Morocco,
the Journal will show that we entered into them unanimously. Nor is
the objection now urged in any way an objection to the general measure
contemplated. The only objection is to the imposition of unnecessary
taxes. If the force necessary to be sent into the Mediterranean will not
exceed an expense of $380,000, the necessity of the imposition of the
proposed taxes surely does not exist. I admit that, after the force is
raised, the President, in virtue of his authority as commander-in-chief,
is to have its whole direction; but it is perfectly novel to me to learn
that we are not previously to be informed of the extent to which it is
proposed to carry it. If to the present number of vessels in service we
add two frigates and five smaller vessels, they will require only an
additional appropriation of $354,000. This, I believe, is the full extent
of the additional force contemplated. As to raising money to that amount,
I make no objection. Though I dislike laying duties thus in gross, yet I
do not know that there can be any great objection to it. The sum proposed
to be raised will give $750,000, which is more than double the sum
necessary.
Is it proper thus to raise these duties, and hold forth to the nation
that the commerce of the Mediterranean is so expensive? The late disaster
in the Mediterranean is not of itself an adequate cause for the measure.
I object to this measure, because it goes to give an improper impression
of the causes of the bill.
Mr. NICHOLSON said, the gentleman from Connecticut seemed to consider the
object too general; he would, in case the committee refused to strike out
the first section, move to limit the application of the fund “to protect
the commerce and seamen of the United States in the Mediterranean.”
The question was then taken on striking out the first section, and passed
in the negative--ayes 26.
Mr. N. then offered the amendment just stated.
Mr. EUSTIS hoped the gentleman from Maryland would withdraw his
amendment, as in a subsequent part of the bill the object is distinctly
specified. It is altogether unnecessary; and if agreed to, it will be
necessary to add, “or adjacent seas.”
Mr. NICHOLSON said, he considered the amendment as unnecessary; but as he
had promised to make it, he could not withdraw it.
Mr. J. RANDOLPH said he would suggest one reason why it ought not
to obtain. One of the Barbary Powers possessed a coast out of the
Mediterranean. If the misfortune of the United States should dispose
this power, (Morocco,) already predisposed to hostility, to war upon
the United States, it would not be in our power to block up the port of
Sallee, and several other ports out of the Mediterranean.
The question was taken on the amendment, which was lost without a
division.
The committee then rose and reported the bill without amendment.
The House immediately took it up--when Mr. R. GRISWOLD renewed his motion
to strike out the first section.
The question on striking out the first section was taken by yeas and
nays--yeas 28, nays 77.
FRIDAY, March 23.
_District of Columbia._
Mr. DAWSON moved that the House should resolve itself into a Committee
of the Whole on the resolutions offered by him, for the recession of the
District of Columbia.
Mr. HUGER said this point had been fully and ably investigated the last
session. He did not expect, after the decision then made, that the House
would have been again called upon to discuss it. He believed the mind of
every member was made up respecting it. He hoped, therefore, the House
would not agree to go into committee.
Mr. J. LEWIS said he should vote against the House resolving itself
into a Committee of the Whole, and should that motion be negatived, he
would move to discharge the Committee of the Whole from all further
consideration of the resolutions. The question was taken on going into
committee, and lost--yeas 20.
Mr. J. LEWIS then moved to discharge the committee. This motion was
carried without debate--yeas 53, embracing a great majority of the
members present.
MONDAY, March 26.
_Impeachment of Judge Chase._
Mr. JOHN RANDOLPH, from the committee appointed on the thirteenth
instant, to prepare and report articles of impeachment against Samuel
Chase, one of the Associate Justices of the Supreme Court of the United
States, made a report thereon, which was read.
_Ordered_, That the said report be printed for the use of the members of
both Houses; and that the Clerk of this House be directed to transmit
to each of the members of the two Houses of Congress, a copy of the said
report, as soon as the same shall be printed.
_Ordered_, That there be a call of the House to-morrow morning at eleven
o’clock.
The House adjourned until four o’clock, post meridian.
_Four o’clock, p. m._
A message from the Senate informed the House that the Senate have passed
a resolution, that the resolution of the two Houses authorizing the
President of the Senate and Speaker of the House of Representatives to
adjourn their respective Houses on this day, be rescinded; and that the
said President and Speaker of the House of Representatives be authorized
to close the present session, by adjourning their respective Houses on
Tuesday, the 27th of this month; to which they desire the concurrence
of this House. The Senate adhere to their amendment, disagreed to by
this House, to the bill, entitled “An act supplementary to the act,
entitled ‘An act providing for a Naval Peace Establishment, and for other
purposes.’”
The House proceeded to consider the resolution of the Senate to rescind
the resolution of both Houses, of the thirteenth instant, for an
adjournment of the two Houses of Congress, on this day; and authorizing
the President of the Senate and Speaker of the House of Representatives,
to close the present session, by adjourning their respective Houses on
Tuesday the 27th of the present month: whereupon,
_Resolved_, That this House doth agree to the said resolution of the
Senate--yeas 49, nays 44.
The House proceeded to reconsider the amendment disagreed to by this
House, and adhered to by the Senate, to the bill, entitled “An act
supplementary to the act, entitled ‘An act providing for a Naval Peace
Establishment, and for other purposes,’” whereupon,
_Resolved_, That this House doth recede from their disagreement to the
said amendment.
TUESDAY, March 27.
_Specific Duties._
A message from the Senate informed the House that the Senate have passed
the bill, entitled “An act for imposing more specific duties on the
importation of certain articles, with amendments, and also for levying
and collecting light-money on foreign ships or vessels.”
The House proceeded to consider the amendments proposed by the Senate
to the bill, entitled “An act for imposing more specific duties on the
importation of certain articles, and also for levying and collecting
light-money on foreign ships or vessels,” whereupon,
_Resolved_, That this House doth agree to the said amendments.
_Half-past four o’clock, p. m._
Mr. JOHN RANDOLPH, from the committee appointed on the part of this
House, jointly with the committee appointed on the part of the Senate,
to wait on the President of the United States and notify him of the
proposed recess of Congress, reported that the committee had performed
that service; and that the President signified to them he had no farther
communication to make during the present session.
_Ordered_, That a message be sent to the Senate to inform them that
this House, having completed the business before them, are now about to
adjourn until the first Monday in November next; and that the Clerk of
this House do go with the said message.
A message from the Senate informed the House that the Senate, having
completed the Legislative business before them, are now ready to adjourn.
Whereupon the SPEAKER adjourned the House until the first Monday in
November next.
EIGHTH CONGRESS.--SECOND SESSION.
BEGUN AT THE CITY OF WASHINGTON, NOVEMBER 5, 1804.
PROCEEDINGS IN THE SENATE.
MONDAY, November 5, 1804.
The second session of the Eighth Congress, conformably to the act passed
at the last session, entitled, “An act altering the time for the next
meeting of Congress,” commenced this day; and the Senate assembled at the
City of Washington.
PRESENT:
AARON BURR, Vice President of the United States and President of the
Senate.
SIMEON OLCOTT and WILLIAM PLUMER, from New Hampshire.
JOHN QUINCY ADAMS, from Massachusetts.
URIAH TRACY, from Connecticut.
CHRISTOPHER ELLERY, from Rhode Island.
STEPHEN R. BRADLEY and ISRAEL SMITH, from Vermont.
JOHN CONDIT, from New Jersey.
SAMUEL WHITE, from Delaware.
SAMUEL SMITH, from Maryland.
ABRAHAM BALDWIN, from Georgia; and
THOMAS WORTHINGTON, from Ohio.
WILLIAM B. GILES, appointed a Senator by the Executive of the
Commonwealth of Virginia, in place of Abraham B. Venable, resigned, took
his seat, and his credentials were read.
The VICE PRESIDENT gave notice that he had received a letter from WILLIAM
HILL WELLS, a Senator from the State of Delaware, resigning his seat in
the Senate.
The number of Senators present not being sufficient to constitute a
quorum, the Senate adjourned.
TUESDAY, November 6.
JESSE FRANKLIN, from the State of North Carolina, GEORGE LOGAN, from
the State of Pennsylvania, and TIMOTHY PICKERING, from the State of
Massachusetts, severally attended.
ANDREW MOORE, appointed a Senator by the Executive of the Commonwealth of
Virginia, in place of Wilson C. Nicholas, resigned, took his seat, and
his credentials were read.
The PRESIDENT administered the oath to Mr. GILES and Mr. MOORE, as the
law prescribes.
_Ordered_--That the PRESIDENT be requested to notify the Executive of
the State of Delaware of the resignation of Mr. Wells.
No quorum being present, the Senate adjourned.
WEDNESDAY, November 7.
ROBERT WRIGHT, from the State of Maryland, attended.
_Ordered_, That the Secretary notify the House of Representatives that a
quorum of the Senate is assembled and ready to proceed to business.
A message from the House of Representatives informed the Senate that a
quorum of the House of Representatives is assembled and ready to proceed
to business. The House of Representatives have appointed a committee on
their part, jointly, with such committee as the Senate may appoint, to
wait on the President of the United States, and notify him that a quorum
of the two Houses is assembled and ready to receive any communications
that he may be pleased to make to them. The House of Representatives have
also passed a resolution that two chaplains, of different denominations,
be appointed to Congress for the present session, one by each House, who
shall interchange weekly; in which several resolutions they desire the
concurrence of the Senate.
The Senate took into consideration the resolution of the House of
Representatives for the appointment of a joint committee to wait on the
President of the United States, and notify him that a quorum of the two
Houses is assembled; and concurred therein, and Messrs. SAMUEL SMITH and
BALDWIN were appointed the committee on the part of the Senate.
The Senate took into consideration the Resolution of the House of
Representatives for the appointment of two chaplains to Congress during
the present session, and, having agreed thereto, proceeded to the choice
of a chaplain on their part; and the Rev. Mr. MCCORMICK was duly elected.
Mr. SAMUEL SMITH reported, from the joint committee, that they had waited
on the President of the United States, agreeably to the resolution of
this day, and that the President of the United States had informed the
committee that he would make a communication to the two Houses to-morrow
at 12 o’clock.
THURSDAY, November 8.
JONATHAN DAYTON, from the State of New Jersey, and JAMES HILLHOUSE, from
the State of Connecticut, severally attended.
The following message was received from the PRESIDENT OF THE UNITED
STATES:--
_To the Senate and House of Representatives of the United
States_:
To a people, fellow-citizens, who sincerely desire the
happiness and prosperity of other nations, to those who justly
calculate that their own well-being is advanced by that of
the nations with which they have intercourse, it will be a
satisfaction to observe, that the war which was lighted up in
Europe a little before our last meeting, has not yet extended
its flames to other nations, nor been marked by the calamities
which sometimes stain the footsteps of war. The irregularities,
too, on the ocean, which generally harass the commerce of
neutral nations, have, in distant parts, disturbed ours less
than on former occasions. But, in the American seas, they have
been greater from peculiar causes; and even within our harbors
and jurisdiction, infringements on the authority of the laws
have been committed, which have called for serious attention.
While noticing the irregularities committed on the ocean by
others, those on our own part should not be omitted, nor left
unprovided for. Complaints have been received that persons
residing within the United States have taken on themselves to
arm merchant vessels, and to force a commerce into certain
ports and countries in defiance of the laws of those countries.
That individuals should undertake to wage private war,
independently of the authority of their country, cannot be
permitted in a well-ordered society. Its tendency to produce
aggression on the laws and rights of other nations, and to
endanger the peace of our own, is so obvious that I doubt not
you will adopt measures for restraining it effectually in
future.
With the nations of Europe, in general, our friendship and
intercourse are undisturbed, and from the governments of the
belligerent powers especially, we continue to receive those
friendly manifestations which are justly due to an honest
neutrality, and to such good offices consistent with that as we
have opportunities of rendering.
The activity and success of the small force employed in the
Mediterranean in the early part of the present year, the
reinforcements sent into that sea, and the energy of the
officers having command in the several vessels, will, I trust,
by the sufferings of war, reduce the barbarians of Tripoli to
the desire of peace on proper terms.
The Bey of Tunis having made requisitions unauthorized by our
treaty, their rejection has produced from him some expressions
of discontent. But to those who expect us to calculate whether
a compliance with unjust demands will not cost us less than a
war, we must leave as a question of calculation for them; also,
whether to retire from unjust demands will not cost them less
than a war. We can do to each other very sensible injuries by
war; but the mutual advantages of peace make that the best
interest of both.
In pursuance of the act providing for the temporary
government of Louisiana, the necessary officers for the
Territory of Orleans were appointed in due time, to commence
the exercise of their functions on the first day of October.
The distance, however, of some of them, and indispensable
previous arrangements, may have retarded its commencement in
some of its parts; the form of government thus provided having
been considered but as temporary, and open to such future
improvements as further information of the circumstances of our
brethren there might suggest, it will of course be subject to
your consideration.
The act of Congress of February 28, 1803, for building and
employing a number of gunboats, is now in a course of execution
to the extent there provided for. The obstacle to naval
enterprise which vessels of this construction offer for our
seaport towns; their utility towards supporting, within our
waters, the authority of the laws; the promptness with which
they will be manned by the seamen and militia of the place in
the moment they are wanting; the facility of their assembling
from different parts of the coast to any point where they
are required in greater force than ordinary; the economy of
their maintenance and preservation from decay when not in
actual service; and the competence of our finances to this
defensive provision, without any new burden, are considerations
which will have due weight with Congress in deciding on the
expediency of adding to their number from year to year, as
experience shall test their utility, until all our important
harbors, by these and auxiliary means, shall be secured against
insult and opposition to the laws.
The state of our finances continues to fulfil out expectations.
Eleven millions and a half of dollars, received in the course
of the year ending the 30th of September last, have enabled us,
after meeting all the ordinary expenses of the year, to pay
upwards of three million six hundred thousand dollars of the
public debt, exclusive of interest. This payment, with those
of the two preceding years, has extinguished upwards of twelve
millions of the principal and a greater sum of interest within
that period; and, by a proportionate diminution of interest,
renders already sensible the effect of the growing sum yearly
applicable to the discharge of the principal.
These, fellow-citizens, are the principal matters which I have
thought it necessary, at this time, to communicate for your
consideration and attention. Some others will be laid before
you in the course of the session; but, in the discharge of
the great duties confided to you by our country, you will
take a broader view of the field of legislation. Whether the
great interests of agriculture, manufactures, commerce, or
navigation, can, within the pale of your constitutional powers,
be aided in any of their relations; whether laws are provided
in all cases, where they are wanting; whether those provided
are exactly what they should be; whether any abuses take place
in their administration, or in that of the public revenues;
whether the organization of the public agents, or of the public
force, is perfect in all its parts: in fine, whether any thing
can be done to advance the general good, or questions within
the limits of your functions, which will necessarily occupy
your attention. In these and all other matters which you in
your wisdom may propose for the good of our country, you may
count with assurance on my hearty co-operation and faithful
execution.
TH. JEFFERSON.
NOVEMBER 8, 1804.
The message was read, and with the documents therein referred to, ordered
to be printed for the use of the Senate.
FRIDAY, November 9.
THOMAS SUMTER, from the State of South Carolina, attended.
A message from the House of Representatives informed the Senate that the
House have appointed the Rev. WILLIAM BENTLEY a chaplain to Congress on
their part during the present session.
MONDAY, November 12.
WILLIAM COCKE, from the State of Tennessee, and DAVID STONE, from the
State of North Carolina, severally attended.
THURSDAY, November 15.
SAMUEL MACLAY, from the State of Pennsylvania, and JOHN SMITH, from the
State of New York, severally attended.
TUESDAY, November 20.
A message from the House of Representatives informed the Senate that the
House have passed a “resolution expressive of the sense of Congress of
the gallant conduct of Captain Stephen Decatur, the officers and crew of
the United States ketch Intrepid, in attacking in the harbor of Tripoli,
and destroying a Tripolitan frigate of forty-four guns,” in which they
desire the concurrence of the Senate.
The resolution last mentioned was read and passed to the second reading.
THURSDAY, November 22.
The resolution of the House of Representatives expressive of the sense of
Congress of the gallant conduct of Capt. Stephen Decatur, the officers
and crew of the United States ketch Intrepid, was read the second time,
and referred to Messrs. BRADLEY, BALDWIN, and GILES, to consider and
report thereon to the Senate.
FRIDAY, November 23.
The PRESIDENT laid before the Senate the credentials of JAMES A. BAYARD,
appointed a Senator by the Legislature of the State of Delaware, in place
of WILLIAM HILL WELLS, resigned, and the credentials were read.
SAMUEL L. MITCHILL, appointed a Senator by the Legislature of New York,
in place of John Armstrong, whose seat has become vacant by his mission
to France, took his seat in the Senate, and produced his credentials,
which were read, and the oath was administered to him by the PRESIDENT,
as the law prescribes.
FRIDAY, November 30.
JOHN SMITH, from the State of Ohio, and JOHN BRECKENRIDGE, from the State
of Kentucky, severally attended.
MONDAY, December 3.
BENJAMIN HOWLAND, appointed a Senator by the Legislature of the State
of Rhode Island, in the place of Samuel J. Potter, deceased, took his
seat and produced his credentials; which were read, and the oath was
administered to him by the PRESIDENT, as the law prescribes.
TUESDAY, December 4.
JAMES JACKSON, from the State of Georgia, attended.
THURSDAY, December 6.
JOSEPH ANDERSON, from the State of Tennessee, attended.
MONDAY, December 17.
The credentials of WILLIAM B. GILES, appointed a Senator by the
Legislature of the Commonwealth of Virginia, in the room of Wilson C.
Nicholas, resigned, and the credentials of ANDREW MOORE, appointed a
Senator by the Legislature of the Commonwealth of Virginia, in the room
of Abraham B. Venable, resigned, were severally read, and the oath was
administered to them, respectively, as the law prescribes.
WEDNESDAY, December 26.
JOHN BROWN, from the State of Kentucky, attended.
MONDAY, January 7, 1805.
The letter of PIERCE BUTLER, Esq., announcing the resignation of his seat
in the Senate, was read.
MONDAY, January 14.
_Mourning for the Honorable Mr. Potter._
On motion, it was
_Resolved_, That the members of the Senate, from a sincere desire
of showing every mark of respect to the Honorable SAMUEL J. POTTER,
deceased, late a member thereof, will go into mourning for him one month,
by the usual mode of wearing a crape round the left arm.[13]
TUESDAY, January 15.
The VICE PRESIDENT being absent, the Senate proceeded to the choice of a
President _pro tempore_, as the constitution provides, and the Honorable
JOSEPH ANDERSON was elected.
_Ordered_, That the Secretary wait on the President of the United States
and acquaint him that, the VICE-PRESIDENT being absent, the Senate have
elected the Honorable JOSEPH ANDERSON President of the Senate _pro
tempore_.
_Ordered_, That the Secretary make a like communication to the House of
Representatives.
JAMES A. BAYARD, from the State of Delaware, attended. His credentials
having been presented and read on the 23d of November last, the oath was
administered to him by the President, as the law prescribes, and he took
his seat in the Senate.
THURSDAY, January 17.
_General Moses Hazen._
The bill entitled “An act for the relief of Charlotte Hazen, widow and
relict of the late Brigadier General Moses Hazen,” was read the third
time, further amended, and the blank filled with the words “two hundred;”
and on the question, Shall this bill pass as amended? it was determined
in the affirmative--yeas 20, nays 8, as follows:
Yeas.--Messrs. Anderson, Bradley, Breckenridge, Brown, Cocke,
Condit, Ellery, Franklin, Howland, Logan, Maclay, Mitchill,
Moore, Smith of Maryland, Smith of New York, Smith of Vermont,
Stone, Sumter, Worthington, and Wright.
Nays.--Messrs. Adams, Baldwin, Dayton, Hillhouse, Olcott,
Plumer, and Tracy.
So it was _Resolved_, That this bill do pass as amended.
MONDAY, January 21.
_African Slavery._
Mr. LOGAN presented a petition signed Thomas Morris, clerk, on behalf
of the meeting of the representatives of the people called Quakers,
in Pennsylvania, New Jersey, &c., stating that the petitioners, from
a sense of religious duty, had again come forward, to plead the cause
of their oppressed and degraded fellow-men of the African race; and
on the question, Shall this petition be received? it passed in the
affirmative--yeas 19, nays 9, as follows:
Yeas.--Messrs. Adams, Bayard, Brown, Condit, Franklin,
Hillhouse, Howland, Logan, Maclay, Mitchill, Olcott, Pickering,
Plumer, Smith of Ohio, Smith of Vermont, Stone, Sumter, White,
and Worthington.
Nays.--Messrs. Anderson, Baldwin, Bradley, Cocke, Jackson,
Moore, Smith of Maryland, Smith of New York, and Wright.
So the petition was read.
TUESDAY, January 29.
_Government of the Territory of Orleans._
Mr. GILES, from the committee to whom was referred, on the 4th instant,
the petition of the merchants, planters, and other inhabitants of
Louisiana, reported a bill further providing for the government of the
Territory of Orleans; and the bill was read, and ordered to the second
reading.
The bill is as follows:
A Bill further providing for the government of the Territory of
Orleans.
_Be it enacted, &c.,_ That the President of the United States
be and he is hereby authorized to establish within the
Territory of Orleans, a government in all respects similar
(except as is herein otherwise provided) to that now exercised
in the Mississippi Territory, and shall, in the recess of the
Senate, but to be nominated at their next meeting, for their
advice and consent, appoint all the officers necessary therein,
in conformity with the ordinance of Congress, made on the 20th
day of July, 1787, and that from and after the establishment
of the said government, the inhabitants of the Territory
of Orleans shall be entitled to and enjoy all the rights,
privileges, and advantages, secured by the said ordinance, and
now enjoyed by the people of the Mississippi Territory.
Sec. 2. _And be it further enacted_, That so much of the said
ordinance of Congress as relates to the organization of a
General Assembly, and prescribes the power thereof, shall,
from and after the ---- day of ---- next, be in force in the
said Territory of Orleans; and in order to carry the same into
operation, the Governor of the said Territory shall cause to
be elected twenty-five representatives, for which purpose he
shall lay off the said Territory into convenient election
districts, on or before the ---- day of ---- next, and give
due notice thereof throughout the same and first appoint the
most convenient place, within each of the said districts, for
holding the elections; and shall nominate a proper officer or
officers to preside at and conduct the same, and to return to
him the names of the persons who may have been duly elected.
All subsequent elections shall be regulated by the Legislature;
and the number of representatives shall be determined, and
the apportionment made in the manner prescribed by the said
ordinance.
Sec. 3. _And be it further enacted_, That the representatives
to be chosen as aforesaid, shall be convened by the Governor,
in the city of Orleans, on the ---- day of ---- next. The
General Assembly shall meet at least once in every year, and
such meeting shall be on the ---- Monday in ---- annually,
unless they shall by law appoint a different day. Neither
House, during the session, shall, without the consent of the
other, adjourn for more than three days, nor to any other place
than that in which the two branches are sitting.
Sec. 4. _And be it further enacted_, That the laws in force in
the said Territory, at the commencement of this act, and not
inconsistent with the provisions thereof, shall continue in
force, until altered, modified, or repealed by the Legislature.
Sec. 5. _And be it further enacted_, That the second paragraph
of the said ordinance, which regulates the descent and
distribution of estates; and also the sixth article of compact
which is annexed to and makes part of said ordinance, are
hereby declared not to extend to, but are excluded from all
operation within the said Territory of Orleans.
Sec. 6. _And be it further enacted_, That the Governor,
Secretary, and Judges, to be appointed by virtue of this
act, shall be severally allowed the same compensation which
is now allowed to the Governor, Secretary, and Judges, of
the Territory of Orleans. And all the additional officers
authorized by this act shall respectively receive the same
compensations for their services, as are by law established
for similar offices in the Mississippi Territory, to be paid
quarterly out of the revenues of import and tonnage, accruing
within the said Territory of Orleans.
Sec. 7. _And be it further enacted_, That whenever it shall
be ascertained by an actual census or enumeration of the
inhabitants of the Territory of Orleans, taken by proper
authority, that the number of inhabitants included therein
shall amount to at least ---- thousand souls, which shall be
determined by adding to the whole number of free persons,
including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons,
the inhabitants of the said Territory, upon application to
Congress for that purpose, and upon producing satisfactory
proof that the number of souls included therein, ascertained
as aforesaid, does actually amount to at least ---- thousand,
shall thereupon be authorized to form for themselves a
constitution and State government, and be admitted into the
Union upon the footing of the original States, in all respects
whatever, conformably to the provisions of the third article
of the Treaty concluded at Paris, on the 30th of April,
1803, between the United States and the French Republic:
_Provided_, That the constitution so to be established, shall
be republican, and not inconsistent with the Constitution of
the United States, nor inconsistent with the ordinance of
the late Congress, passed the 13th day of July, 1787, so far
as the same is made applicable to the Territorial government
hereby authorized to be established: _Provided, however_,
That Congress shall be at liberty, at any time prior to the
admission of the inhabitants of the said Territory to the
rights of a separate State, to alter the boundaries thereof as
they may judge proper: except only, that no alteration shall be
made which shall procrastinate the period for the admission of
the inhabitants thereof to the rights of a State Government,
according to the provision of this act.
Sec. 8. _And be it further enacted_, That so much of an act
entitled, “An act erecting Louisiana into two Territories,
and providing for the temporary government thereof,” as is
repugnant with this act, shall, from and after the ---- day of
---- next, be repealed.
WEDNESDAY, January 30.
_Army Uniform._
The PRESIDENT laid before the Senate the petition of Andrew Jackson,
Major General, and sundry other militia officers and other citizens
of the State of Tennessee, praying Congress to amend the articles and
rules for the future government of the army, in respect to certain parts
of their dress and uniform; and, on the question, Shall this petition
be referred to the committee appointed on the 25th instant, who have
under consideration the bill, entitled “An act for establishing rules
and articles for the government of the armies of the United States?” it
passed in the affirmative--yeas 16, nays 15, as follows:
Yeas.--Messrs. Adams, Anderson, Baldwin, Bayard, Bradley,
Cocke, Condit, Franklin, Hillhouse, Maclay, Mitchill, Olcott,
Pickering, Plumer, Stone, and Worthington.
Nays.--Messrs. Breckenridge, Brown, Dayton, Giles, Howland,
Jackson, Logan, Moore, Smith of Maryland, Smith of New York,
Smith of Ohio, Smith of Vermont, Sumter, White, and Wright.
THURSDAY, January 31.
JOHN GAILLARD, appointed a Senator by the Legislature of the State of
South Carolina, in the room of Pierce Butler, resigned, took his seat
in the Senate, and the oath prescribed was administered to him by the
PRESIDENT.[14]
TUESDAY, February 12.
_Opening and Counting Votes for President and Vice President._
_Resolved_, That the Senate will be ready to receive the House of
Representatives in the Senate Chamber, on Wednesday the 13th instant,
February, at noon, for the purpose of being present at the opening and
counting the votes for PRESIDENT and VICE PRESIDENT OF THE UNITED STATES.
That one person be appointed a teller on the part of the Senate, to
make a list of the votes for President and Vice President of the United
States, as they shall be declared, and that the result shall be delivered
to the President of the Senate, who shall announce the state of the vote,
which shall be entered on the Journals, and, if it shall appear that a
choice hath been made agreeably to the constitution, such entry on the
Journals shall be deemed a sufficient declaration thereof.
_Ordered_, That the Secretary do carry this resolution to the House of
Representatives.
WEDNESDAY, February 13.
_Counting of Electoral Votes for President and Vice President._
About twelve o’clock the Senators took their seats; and immediately after
the SPEAKER and members of the House of Representatives entered; the
SPEAKER and Clerk occupying seats on the floor on the right side of the
PRESIDENT of the Senate, and the members of the House being seated in
front.
Mr. SAMUEL SMITH, teller on the part of the Senate, and Mr. JOSEPH CLAY,
and Mr. ROGER GRISWOLD, tellers on the part of the House, took seats at
a table placed in front of the Chair, in the area between the Senate and
House.
The Secretary of the Senate read the resolutions of the two Houses,
previously agreed to.
The PRESIDENT (Mr. BURR) stated that, pursuant to law, there had been
transmitted to him several packets, which, from the endorsements upon
them, appeared to be the votes of the Electors of a President and Vice
President; that the returns forwarded by the mail, as well as the
duplicates sent by special messengers, had been received by him in due
time. You will now proceed, gentlemen, said he, to count the votes as
the constitution and laws direct; adding that, perceiving no cause
for preference in the order of opening the returns, he would pursue a
geographical arrangement, beginning with the Northern States.
The PRESIDENT then proceeded to break the seals of the respective
returns, handing each return, and its accompanying duplicate, as the
seals of each were broken, to the tellers through, the Secretary; Mr. S.
SMITH reading aloud the returns, and the attestations of the appointment
of the Electors, and Mr. J. CLAY and Mr. R. GRISWOLD comparing them with
the duplicate return lying before them.
According to which enumeration, the following appeared to be the result.
------------------+----------------------+-----------------
| President. | V. Pres’dt
+-----------+----------+---------+-------
STATES. | Th. | C. C. | Geo. |Rufus
|Jefferson. |Pinckney. |Clinton. |King.
------------------+-----------+----------+---------+-------
New Hampshire | 7 | - | 7 |
Massachusetts | 19 | - | 19 |
[A]Rhode Island | 4 | - | 4 |
Connecticut | - | - | - | 9
Vermont | 6 | - | 6 |
New York | 19 | - | 19 |
New Jersey | 8 | - | 8 |
Pennsylvania | 20 | - | 20 |
Delaware | - | 3 | - | 3
Maryland | 9 | 2 | 9 | 2
Virginia | 24 | - | 24 |
North Carolina | 14 | - | 14 |
South Carolina | 10 | - | 10 |
[B]Georgia | 6 | - | 6 |
Tennessee | 5 | - | 5 |
Kentucky | 8 | - | 8 |
[C]Ohio | 3 | - | 3 |
------------------+-----------+----------+---------+-------
Total | 162 | 14 | 162 | 14
------------------+-----------+----------+---------+-------
[A] In this return, after stating the whole number of votes given
for Thomas Jefferson and George Clinton, each Elector certifies
distinctly his vote for Thomas Jefferson as President, and for
George Clinton, as Vice President.
[B] The return certifies the votes to have been given as stated in
an enclosed paper.
[C] In this return, the votes are not certified to have been given
by ballot, but agreeably to law.
After the returns had been all examined, without any objection having
been made to receiving any of the votes, Mr. S. SMITH, on behalf of the
tellers, communicated to the PRESIDENT the foregoing result, which was
read from the Chair; when, the VICE PRESIDENT said, upon this report it
becomes my duty to declare, agreeably to the constitution, that THOMAS
JEFFERSON is elected President of the United States, for the term of
four years from the third day of March next, and that GEORGE CLINTON is
elected Vice President of the United States, for the term of four years
from the third day of March next.
[Previous to the above proceedings, a short debate arose in the Senate on
the keeping of the doors open or shut during the counting of the votes.
Mr. WRIGHT submitted a motion for their being kept open, which, after
some opposition, was agreed to.]
SATURDAY, February 16.
_Absent Members._
A motion was made,
“That a call of the Senate take place every morning at the
hour to which the Senate is adjourned, and that absent members
be not permitted to take their seats until a satisfactory
excuse be made, or the opinion of the Senate be had thereon.”
WEDNESDAY, February 20.
_Tripolitan War._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
I communicate, for the information of Congress, a letter of
September 18th, from Commodore Preble, giving a detailed
account of the transactions of the vessels under his command,
from July the 9th, to the 10th of September last past.
The energy and judgment displayed by this excellent officer,
through the whole course of the service lately confided to
him, and the zeal and valor of his officers and men, in the
several enterprises executed by them, cannot fail to give high
satisfaction to Congress and their country, of whom they have
deserved well.
TH. JEFFERSON.
FEBRUARY 20, 1805.
FRIDAY, February 22.
The bill freeing from postage all letters and packets to and from AARON
BURR, was read the second time.
SATURDAY, February 23.
Mr. LOGAN gave notice that he should, on Monday next, ask leave to bring
in a bill to prohibit the granting clearances to vessels bound to St.
Domingo.
MONDAY, February 25.
_Commodore Preble._
Mr. JACKSON laid on the table a motion expressive of the high sense
Congress entertain of the gallant and meritorious services of Commodore
Edward Preble, and the officers, seamen, and marines, under his command;
and the motion was read; and it was agreed that it be referred to a
select committee.
WEDNESDAY, February 27.
_Franking Privilege to Aaron Burr._
The Senate resumed the second reading of the bill freeing from postage
all letters and packets to and from AARON BURR; and, on the question,
Shall this bill pass to the third reading? it was determined in the
affirmative--yeas 18, nays 9, as follows:
YEAS.--Messrs. Adams, Baldwin, Bradley, Breckenridge, Brown,
Cocke, Condit, Dayton, Franklin, Gaillard, Giles, Jackson,
Mitchill, Moore, Smith of Maryland, Smith of Ohio, Smith of
Vermont, and Wright.
NAYS.--Messrs. Ellery, Hillhouse, Howland, Logan, Olcott,
Pickering, Plumer, Sumter, and Worthington.[15]
THURSDAY, February 28.
The VICE PRESIDENT being indisposed, the Senate proceeded to the choice
of a President _pro tempore_ as the constitution provides, and the Hon.
JOSEPH ANDERSON was elected.
_Ordered_, That the Secretary wait on the President of the United States,
and acquaint him that, the VICE PRESIDENT being absent, the Senate have
elected the Hon. JOSEPH ANDERSON President of the Senate _pro tempore_.
_Ordered_, That the Secretary make a like communication to the House of
Representatives.
The following Messages were received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
I now lay before Congress a statement of the militia of the
United States, according to the returns last received from the
several States. It will be perceived that some of these are not
recent dates, and that from the States of Maryland, Delaware,
and Tennessee, no returns are stated. As far as appears from
our records, none were ever rendered from either of these
States.
TH. JEFFERSON.
FEBRUARY 28, 1805.
* * * * *
_To the Senate and House of Representatives of the United
States_:
I now render to Congress the account of the fund established by
the act of May 1st, 1802, for defraying the contingent charges
of Government. No occasion having arisen for making use of any
part of the balance of $18,560, unexpended on the 31st day of
December, 1803, when the last account was rendered by Message,
that balance has been carried to the credit of the surplus fund.
TH. JEFFERSON.
FEBRUARY 28, 1805.
The messages and documents therein referred to were severally read, and
ordered to lie for consideration.
_Franking Privilege to Col. Burr._
The bill freeing from postage all letters and packets to and from
AARON BURR was read the third time; on motion to postpone the further
consideration thereof until the first Monday in December next, it passed
in the negative--yeas 12, nays 18, as follows:
YEAS.--Messrs. Baldwin, Ellery, Franklin, Hillhouse, Howland,
Logan, Maclay, Olcott, Pickering, Plumer, Stone, and Sumter.
NAYS.--Messrs. Adams, Anderson, Bradley, Breckenridge, Brown,
Cocke, Condit, Dayton, Gaillard, Jackson, Mitchill, Moore,
Smith of Maryland, Smith of New York, Smith of Ohio, Smith of
Vermont, Worthington, and Wright.
On the question, Shall this bill pass? it was determined in the
affirmative--yeas 18, nays 13, as follows:
YEAS.--Messrs. Adams, Anderson, Bradley, Breckenridge, Brown,
Cocke, Condit, Dayton, Gaillard, Jackson, Mitchill, Moore,
Smith of Maryland, Smith of New York, Smith of Ohio, Smith of
Vermont, White, and Wright.
NAYS.--Messrs. Baldwin, Ellery, Franklin, Hillhouse, Howland,
Logan, Maclay, Olcott, Pickering, Plumer, Stone, Sumter, and
Worthington.
So it was _Resolved_, that this bill do pass, that it be engrossed, and
that the title thereof be “An act freeing from postage all letters and
packets to and from Aaron Burr.”
SATURDAY, March 2.
_Resignation of Vice President Burr._
BURR’S ADDRESS.
The VICE PRESIDENT took an affectionate leave of the Senate, in substance
as follows:
“Mr. BURR began by saying, that he had intended to pass the day
with them, but the increase of a slight indisposition (sore
throat) had determined him then to take leave of them. He
touched lightly on some of the rules and orders of the House,
and recommended, in one or two points, alterations, of which he
briefly explained the reasons and principles.
“He said he was sensible he must at times have wounded the
feelings of individual members. He had ever avoided entering
into explanations at the time, because a moment of irritation
was not a moment for explanation; because his position (being
in the chair) rendered it impossible to enter into explanations
without obvious danger of consequences which might hazard the
dignity of the Senate, or prove disagreeable and injurious in
more than one point of view; that he had, therefore, preferred
to leave to their reflections his justification; that, on his
part, he had no injuries to complain of; if any had been done
or attempted, he was ignorant of the authors; and if he had
ever heard, he had forgotten, for, he thanked God, he had no
memory for injuries.
“He doubted not but that they had found occasion to observe,
that to be prompt was not therefore to be precipitate; and that
to act without delay was not always to act without reflection;
that error was often to be preferred to indecision; that his
errors, whatever they might have been, were those of rule and
principle, and not of caprice; that it could not be deemed
arrogance in him to say that, in his official conduct, he had
known no party, no cause, no friend; that if, in the opinion
of any, the discipline which had been established approached
to rigor, they would at least admit that it was uniform and
indiscriminate.
“He further remarked, that the ignorant and unthinking affected
to treat as unnecessary and fastidious a rigid attention
to rules and decorum; but he thought nothing trivial which
touched, however remotely, the dignity of that body; and he
appealed to their experience for the justice of this sentiment,
and urged them in language the most impressive, and in a manner
the most commanding, to avoid the smallest relaxation of the
habits which he had endeavored, to inculcate and establish.
“But he challenged their attention to considerations more
momentous than any which regarded merely their personal honor
and character--the preservation of law, of liberty, and the
constitution. This House, said he, is a sanctuary; a citadel
of law, of order, and of liberty; and it is here--it is here,
in this exalted refuge; here, if any where, will resistance be
made to the storms of political frenzy and the silent arts of
corruption; and if the constitution be destined ever to perish
by the sacrilegious hands of the demagogue or the usurper,
which God avert, its expiring agonies will be witnessed on this
floor.
“He then adverted to those affecting sentiments which attended
a final separation--a dissolution, perhaps for ever, of those
associations which he hoped had been mutually satisfactory. He
consoled himself, however, and them, with the reflection, that,
though they separated, they would be engaged in the common
cause of disseminating principles of freedom and social order.
He should always regard the proceedings of that body with
interest and with solicitude. He should feel for their honor
and the national honor so intimately connected with it, and
took his leave with expressions of personal respect, and with
prayers, and wishes,” &c.[16]
Whereupon, the Senate proceeded to the choice of a President _pro
tempore_, as the constitution provides; and the Honorable JOSEPH ANDERSON
was elected.
_Ordered_, That the Secretary wait on the President of the United States,
and acquaint him that, the VICE PRESIDENT being absent, the Senate have
elected the Honorable JOSEPH ANDERSON President of the Senate _pro
tempore_.
_Ordered_, That the Secretary notify the same to the House of
Representatives.
_Resolved unanimously_, That the thanks of the Senate be presented to
AARON BURR, in testimony of the impartiality, dignity, and ability, with
which he has presided over their deliberations, and of their entire
approbation of his conduct in discharge of the arduous and important
duties assigned him as President of the Senate.
_Ordered_, That Messrs. SMITH of Maryland, and WHITE, be a committee to
communicate to him this resolution.
SUNDAY, March 3.
_Reply of Vice President Burr to the Vote of Thanks._
Mr. SMITH of Maryland, from the committee appointed for that purpose,
reported that they had waited on the VICE PRESIDENT, agreeably to the
resolution of yesterday, to which he made the following reply:
_To the Senate of the United States_:
GENTLEMEN: Next to the satisfaction derived from the
consciousness of having discharged my duty, is that which
arises from the favorable opinion of those who have been the
constant witnesses of my official conduct; and the value of
this flattering mark of their esteem is greatly enhanced by the
promptitude and unanimity with which it is offered.
I pray you to accept my respectful acknowledgments, and the
assurance of my inviolable attachment to the interests and
dignity of the Senate.
A. BURR.
MARCH 3, 1805.
_Adjournment._
On motion,
_Resolved_, That Messrs. ADAMS, and SMITH of Maryland, be a committee
on the part of the Senate, with such as the House of Representatives may
join, to wait on the President of the United States, and notify him that,
unless he may have any further communications to make to the two Houses
of Congress, they are ready to adjourn.
_Ordered_, That the Secretary acquaint the House of Representatives
therewith, and desire the appointment of a committee on their part.
Mr. ADAMS, from the committee, reported that they had waited upon the
PRESIDENT OF THE UNITED STATES, who informed them that he had no further
communications to make to the two Houses of Congress.
The Secretary was then directed to inform the House of Representatives
that the Senate, having finished the business before them, are about to
adjourn. Whereupon, the Senate adjourned.
MARCH 4, 1805.
_Inaugural Speech._
On Monday, at 12 o’clock, THOMAS JEFFERSON, President of the United
States, took the oath of office, and delivered the following Inaugural
Speech in the Senate Chamber, in the presence of the members of the two
Houses, and a large concourse of citizens:
PROCEEDING, fellow-citizens, to that qualification which
the constitution requires before my entrance on the
charge conferred on me, it is my duty to express the deep
sense I entertain of this new proof of confidence from my
fellow-citizens at large, and the zeal with which it inspires
me so to conduct myself as may best satisfy their just
expectations.
On taking this station, on a former occasion, I declared the
principles on which I believed it my duty to administer the
affairs of our commonwealth. My conscience tells me I have, on
every occasion, acted up to that declaration, according to its
obvious import, and to the understanding of every candid mind.
In the transaction of your foreign affairs, we have endeavored
to cultivate the friendship of all nations, and especially
of those with which we have the most important relations. We
have done them justice on all occasions; favor, where favor
was lawful, and cherished mutual interests and intercourse on
fair and equal terms. We are firmly convinced, and we act on
that conviction, that with nations, as with individuals, our
interests, soundly calculated, will ever be found inseparable
from our moral duties; and history-bears witness to the fact,
that a just nation is trusted on its word, when recourse is had
to armaments and wars to bridle others.
At home, fellow-citizens, you best know whether we have done
well or ill. The suppression of unnecessary offices, of useless
establishments and expenses, enabled us to discontinue our
internal taxes. These, covering our land with officers,[17]
and opening our doors to their intrusions, had already begun
that process of domiciliary vexation, which, once entered,
is scarcely to be restrained from reaching, successively,
every article of property and produce. If, among these taxes,
some minor ones fell, which had not been inconvenient, it was
because their amount would not have paid the officers who
collected them; and because, if they had any merit, the State
authorities might adopt them instead of others less approved.
The remaining revenue, on the consumption of foreign articles,
is paid chiefly by those who can afford to add foreign luxuries
to domestic comforts. Being collected on our seaboard and
frontiers only, and incorporated with the transactions of our
mercantile citizens, it may be the pleasure and the pride of an
American to ask, what farmer, what mechanic, what laborer, ever
sees a tax-gatherer of the United States? These contributions
enable us to support the current expenses of the Government;
to fulfil contracts with foreign nations; to extinguish the
native right of soil within our limits; to extend those limits;
and to apply such a surplus to our public debts, as places,
at a short day, their final redemption; and that redemption,
once effected, the revenue thereby liberated may, by a just
repartition of it among the States, and a corresponding
amendment of the constitution, be applied, _in time of peace_,
to rivers, canals, roads, arts, manufactures, education, and
other great objects, within each State.[18] _In time of war_,
if injustice by ourselves, or others, must sometimes produce
war, increased, as the same revenue will be, by increased
population and consumption, and aided by other resources
reserved for that crisis, it may meet, within the year, all
the expenses of the year, without encroaching on the rights
of future generations, by burdening them with the debts of
the past. War will then be but a suspension of useful works;
and a return to a state of peace, a return to the progress of
improvement.
I have said, fellow-citizens, that the income reserved had
enabled us to extend our limits; but that extension may
possibly pay for itself before we are called on; and, in the
mean time, may keep down the accruing interest: in all events,
it will replace the advances we shall have made. I know that
the acquisition of Louisiana has been disapproved by some, from
a candid apprehension that the enlargement of our territory
would endanger its union. But who can limit the extent to
which the federative principle may operate effectively? The
larger our association, the less will it be shaken by local
passions: and, in any view, is it not better that the opposite
bank of the Mississippi should be settled by our own brethren
and children, than by strangers of another family? With which
should we be most likely to live in harmony and friendly
intercourse?
In matters of religion, I have considered that its free
exercise is placed by the constitution independent of the
powers of the General Government. I have therefore undertaken,
on no occasion, to prescribe the religious exercises suited to
it; but have left them, as the constitution found them, under
the direction and discipline of the Church or State authorities
acknowledged by the several religious societies.
The aboriginal inhabitants of these countries I have regarded
with the commiseration their history inspires. Endowed with the
faculties and the rights of men, breathing an ardent love of
liberty and independence, and occupying a country which left
them no desire but to be undisturbed, the stream of overflowing
population from other regions directed itself on these shores.
Without power to divert, or habits to contend against it, they
have been overwhelmed by the current, or driven before it. Now
reduced within limits too narrow for the hunter state, humanity
enjoins us to teach them agriculture and the domestic arts; to
encourage them to that industry which alone can enable them to
maintain their place in existence; and to prepare them in time
for that state of society which, to bodily comforts, adds the
improvement of the mind and morals. We have therefore liberally
furnished them with the implements of husbandry and household
use; we have placed among them instructors in the arts of
first necessity; and they are covered with the ægis of the law
against aggressors from among ourselves.
But the endeavors to enlighten them on the fate which awaits
their present course of life, to induce them to exercise
their reason, follow its dictates, and change their pursuits
with the change of circumstances, have powerful obstacles to
encounter. They are combated by the habits of their bodies,
prejudices of their minds, ignorance, pride, and the influence
of interested and crafty individuals among them, who feel
themselves something in the present order of things, and fear
to become nothing in any other. These persons inculcate a
sanctimonious reverence for the customs of their ancestors;
that whatsoever they did, must be done through all time; that
reason is a false guide, and to advance under its counsel in
their physical, moral, or political condition, is perilous
innovation; that their duty is to remain as their Creator made
them; ignorance being safety, and knowledge full of danger.
In short, my friends, among them, also, is seen the action
and counteraction of good sense and of bigotry. They, too,
have their anti-philosophists, who find an interest in keeping
things in their present state; who dread reformation, and exert
all their faculties to maintain the ascendency of habit over
the duty of improving our reason, and obeying its mandates.
In giving these outlines, I do not mean, fellow-citizens, to
arrogate to myself the merit of the measures--that is due, in
the first place, to the reflecting character of our citizens
at large, who, by the weight of public opinion, influence
and strengthen the public measures. It is due to the sound
discretion with which they select from among themselves those
to whom they confide the legislative duties. It is due to
the zeal and wisdom of the characters thus selected, who lay
the foundations of public happiness in wholesome laws, the
execution of which alone remains for others; and it is due
to the able and faithful auxiliaries, whose patriotism has
associated them with me in the executive functions.
During this course of administration, and in order to disturb
it, the artillery of the press has been levelled against us,
charged with whatsoever its licentiousness could devise or
dare. These abuses of an institution, so important to freedom
and science, are deeply to be regretted, inasmuch as they tend
to lessen its usefulness, and to sap its safety. They might,
indeed, have been corrected by the wholesome punishments
reserved to, and provided by, the laws of the several States
against falsehood and defamation; but public duties, more
urgent, press on the time of public servants, and the offenders
have therefore been left to find their punishment in the public
indignation.
Nor was it uninteresting to the world, that an experiment
should be fairly and fully made, whether freedom of discussion,
unaided by power, is not sufficient for the propagation and
protection of truth; Whether a Government, conducting itself in
the true spirit of its constitution, with zeal and purity, and
doing no act which it would be unwilling the whole world should
witness, can be written down by falsehood and defamation.
The experiment has been tried. You have witnessed the scene.
Our fellow-citizens looked on cool and collected. They saw
the latent source from which these outrages proceeded. They
gathered around their public functionaries; and when the
constitution called them to the decision by suffrage, they
pronounced their verdict honorable to those who had served
them, and consolatory to the friend of man, who believes that
he may be trusted with the control of his own affairs.
No inference is here intended, that the laws provided by the
States against false and defamatory publications, should not
be enforced. He who has time, renders a service to public
morals and public tranquillity, in reforming these abuses by
the salutary coercions of the law. But the experiment is noted
to prove, that, since truth and reason have maintained their
ground against false opinions, in league with false facts, the
press, confined to truth, needs no other legal restraint. The
public judgment will correct false reasonings and opinions, on
a full hearing of all parties; and no other definite line can
be drawn between the inestimable liberty of the press, and its
demoralizing licentiousness. If there be still improprieties
which this rule would not restrain, its supplement must be
sought in the censorship of public opinion.
Contemplating the union of sentiment now manifested so
generally, as auguring harmony and happiness to our future
course, I offer to our country sincere congratulations. With
those, too, not yet rallied to the same point, the disposition
to do so is gaining strength. Facts are piercing through the
veil drawn over them: and our doubting brethren will at length
see that the mass of their fellow-citizens, with whom they
cannot yet resolve to act, as to principles and measures, think
as they think, and desire what they desire: that our wish, as
well as theirs, is, that the public efforts may be directed
honestly to the public good; that peace be cultivated; civil
and religious liberty unassailed; law and order preserved;
equality of rights maintained; and that state of property,
equal or unequal, which results to every man from his own
industry, or that of his father. When satisfied of these
views, it is not in human nature that they should not approve
and support them. In the mean time, let us cherish them with
patient affection; let us do them justice, and more than
justice, in all competitions of interest; and we need not doubt
that truth, reason, and their own interests, will at length
prevail; will gather them into the fold of their country, and
will complete that entire union of opinion which gives to a
nation the blessing of harmony, and the benefit of all its
strength.
I shall now enter on the duties to which my fellow-citizens
have again called me, and shall proceed in the spirit of
those principles which they have approved. I fear not that
any motives of interest may lead me astray. I am sensible of
no passion which could seduce me, knowingly, from the path of
justice; but the weaknesses of human nature, and the limits
of my own understanding, will produce errors of judgment,
sometimes injurious to your interests. I shall need, therefore,
all the indulgence which I have heretofore experienced from my
constituents. The want of it will certainly not lessen with
increasing years. I shall need, too, the favor of that Being
in whose hands we are; who led our fathers, as Israel of old,
from their native land, and planted them in a country flowing
with all the necessaries and comforts of life; who has covered
our infancy with His providence, and our riper years with His
wisdom and power; and to whose goodness I ask you to join in
supplications with me, that He will so enlighten the minds
of your servants, guide their councils, and prosper their
measures, that, whatsoever they do, shall result in your good,
and shall secure to you the peace, friendship, and approbation
of all nations.
After which, the Chief Justice of the United States administered to him
the oath of office prescribed by the constitution; and the oath was, in
like manner, administered to GEORGE CLINTON, Vice President of the United
States; after which, the PRESIDENT and VICE PRESIDENT retired.
Trial of Judge Chase.
TRIAL OF SAMUEL CHASE, AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE
UNITED STATES, IMPEACHED BY THE HOUSE OF REPRESENTATIVES FOR HIGH CRIMES
AND MISDEMEANORS, BEFORE THE SENATE OF THE UNITED STATES.
[TAKEN IN SHORT-HAND BY SAMUEL H. SMITH AND THOMAS LLOYD.]
This trial was one of the events of the day, greatly exciting party
passions, and taking a scope which gives it historic interest, both for
the persons concerned, and the matters involved. The account of it is
greatly abridged here, but it is believed all is still retained which is
necessary to the full knowledge of the case, and to a just conception of
the skill, learning, eloquence and ability with which the trial (both
the prosecution and the defence) was conducted. The formal charges are
omitted, as being sufficiently shown in the pleadings; the testimony of
witnesses limited to their principal statements; and the speeches only
given in their essential parts.
[The following report of the trial of SAMUEL CHASE has been
drawn up with the greatest care. To guard against misconception
or omission, two individuals, one of whom is a professional
stenographer, were constantly engaged during the whole course
of the trial; and the arguments of the managers and counsel
have in most instances, and whenever it was attainable, been
revised by them. It is with some satisfaction that the editor
of this impression is enabled, under these circumstances,
to submit to the public a tract, whose fidelity and
comprehensiveness, he hopes will amply reward the interest so
deeply excited by the progress and issue of this important
trial.--_Editor National Intelligencer._]
MEASURES PRELIMINARY TO THE TRIAL.
On the fifth day of January 1804, Mr. J. RANDOLPH, a member of the House
of Representatives of the United States, rose and addressed that body to
the following effect:
He observed “That no people were more fully impressed with the importance
of preserving unpolluted the fountain of justice than the citizens of
these States. With this view the Constitution of the United States, and
of many of the States also, had rendered the magistrates who decided
judicially between the State and the offending citizens, and between man
and man, more independent than those of any other country in the world,
in the hope that every inducement, whether of intimidation or seduction,
which should cause them to swerve from the duty assigned to them, might
be removed. But such was the frailty of human nature, that there was
no precaution by which our integrity and honor could be preserved, in
case we were deficient in that duty which we owed to ourselves. In
consequence, sir,” said Mr. Randolph, “of this unfortunate condition
of man, we have been obliged, but yesterday, to prefer an accusation
against a judge of the United States, who has been found wanting in his
duty to himself and his country. At the last session of Congress, a
gentleman from Pennsylvania did, in his place, (on a bill to amend the
judicial system of the United States,) state certain facts in relation
to the official conduct of an eminent judicial character, which I then
thought, and still think, the House bound to notice. But the lateness of
the session (for we had, if I mistake not, scarce a fortnight remaining)
precluding all possibility of bringing the subject to any efficient
result, I did not then think proper to take any steps in the business.
Finding my attention, however, thus drawn to a consideration of the
character of the officer in question, I made it my business, considering
it my duty, as well to myself as those whom I represent, to investigate
the charges then made, and the official character of the judge, in
general. The result having convinced me that there exists ground of
impeachment against this officer, I demand an inquiry into his conduct,
and therefore submit to the House the following resolution:
“_Resolved_, That a committee be appointed to inquire into
the official conduct of SAMUEL CHASE, one of the Associate
Judges of the Supreme Court of the United States, and to report
their opinion, whether the said SAMUEL CHASE hath so acted in
his judicial capacity as to require the interposition of the
constitutional power of this House.”
A short debate immediately arose on this motion, which was advocated by
Messrs. J. RANDOLPH, SMILIE, and J. CLAY; and opposed by Mr. ELLIOT.
Several members supported a motion to postpone it until the ensuing day,
which was superseded by an adjournment of the House.
The House, on the next day, resumed the consideration of Mr. RANDOLPH’s
motion, which was supported by Mr. SMILIE, and, on the motion of Mr.
LEIB, so amended as to embrace an inquiry into the official conduct of
Richard Peters, district judge for the District of Pennsylvania. On the
motion, thus amended, further debate arose, which occupied the greater
part of this and the ensuing day. It was supported by Messrs. FINDLAY,
JACKSON, NICHOLSON, HOLLAND, J. RANDOLPH, EUSTIS, EARLY, SMILIE, and
EPPES; and opposed by Messrs. LOWNDES, R. GRISWOLD, ELLIOT, DENNIS,
GRIFFIN, THATCHER, HUGER, and DANA. Some ineffectual attempts were
made to amend the resolution, when the final question was taken on the
resolution, as amended, in the following words:
“_Resolved_, That a committee be appointed to inquire into the
official conduct of Samuel Chase, one of the Associate Justices
of the Supreme Court of the United States, and of Richard
Peters, district judge of the district of Pennsylvania, and to
report their opinion, whether the said Samuel Chase and Richard
Peters, or either of them, have so acted in their judicial
capacity, as to require the interposition of the constitutional
power of this House:”
And resolved in the affirmative--yeas 81, nays 40.
Whereupon, Messrs. J. RANDOLPH, NICHOLSON, J. CLAY, EARLY, R. GRISWOLD,
HUGER, and BOYLE, were appointed a committee pursuant to the foregoing
resolution.
On the 10th of January, the committee were authorized by the House to
send for persons, papers, and records; and on the 30th day of the same
month they were authorized to cause to be printed such documents and
papers as they might deem necessary, previous to their presentation to
the House.
On the 6th day of March, Mr. RANDOLPH, in the name of the committee, made
a report, “That in consequence of the evidence collected by them, in
virtue of the powers with which they have been invested by the House, and
which is hereunto subjoined, they are of opinion, 1st. That Samuel Chase,
Esq., an Associate Justice of the Supreme Court of the United States, be
impeached of high crimes and misdemeanors.
“2d. That Richard Peters, district judge of the district of Pennsylvania,
has not so acted in his judicial capacity as to require the interposition
of the constitutional power of this House.”
This report, accompanied by a great mass of printed documents, embracing
various depositions taken before the committee, as well as at a distance,
was made the order of the day for the Monday following.
On that day the House took up the report, and after a short debate
concurred in the first resolution by the following vote--yeas 73, nays
32, as follows:
YEAS.--Willis Alston, jun., Isaac Anderson, John Archer,
David Bard, George Michael Bedinger, William Blackledge,
Walter Bowie, Adam Boyd, John Boyle, Robert Brown, Joseph
Bryan, William Butler, Levi Casey, Thomas Claiborne, Joseph
Clay, Matthew Clay, John Clopton, Frederick Conrad, Jacob
Crowninshield, Richard Cutts, John Dawson, William Dickson,
John B. Earle, Peter Early, James Elliot, William Findlay, John
Fowler, James Gillespie, Peterson Goodwyn, Andrew Gregg, Samuel
Hammond, James Holland, David Holmes, Walter Jones, William
Kennedy, Nehemiah Knight, Michael Leib, Matthew Lyon, Andrew
McCord, William McCreery, David Meriwether, Andrew Moore,
Nicholas R. Moore, Jeremiah Morrow, Anthony New, Thomas Newton,
jun., Joseph H. Nicholson, Gideon Olin, John Patterson, John
Randolph, Thomas M. Randolph, John Rea of Pennsylvania, John
Rhea of Tennessee, Jacob Richards, Cæsar A. Rodney, Thomas
Sammons, Thomas Sanford, Ebenezer Seaver, James Sloan, John
Smilie, Henry Southard, Richard Stanford, Joseph Stanton, John
Stewart, David Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Isaac Van Horne, Joseph B. Varnum, Marmaduke Williams,
Richard Wynn, and Joseph Winston.
NAYS.--Simeon Baldwin, Silas Betton, John Campbell, William
Chamberlin, Martin Chittenden, Clifton Claggett, Manasseh
Cutler, Samuel W. Dana, John Davenport, Thomas Dwight, Thomas
Griffin, Gaylord Griswold, Roger Griswold, Seth Hastings,
William Helms, Benjamin Huger, Joseph Lewis, jun., Henry W.
Livingston, Thomas Lowndes, Nahum Mitchell, Thomas Plater,
Samuel D. Purviance, John Cotton Smith, John Smith of Virginia,
William Stedman, James Stevenson, Samuel Taggart, Samuel
Tenney, Samuel Thatcher, Killian K. Van Rensselaer, Peleg
Wadsworth, and Lemuel Williams.
The second resolution was agreed to unanimously.
Whereupon, it was ordered, that Mr. JOHN RANDOLPH and Mr. EARLY be
appointed a committee to go to the Senate, at the bar thereof, in the
name of the House of Representatives, and of all the people of the United
States, to impeach Samuel Chase, one of the Associate Justices of the
Supreme Court of the United States, of high crimes and misdemeanors; and
acquaint the Senate that the House of Representatives will, in due time,
exhibit particular articles of impeachment against him, and make good the
same. It was also ordered, that the committee do demand, that the Senate
take order for the appearance of the said Samuel Chase, to answer to the
said impeachment.
On the 13th of March, Messrs. J. RANDOLPH, NICHOLSON, J. CLAY, EARLY,
and BOYLE, were appointed a committee to prepare and report articles of
impeachment against Samuel Chase, and invested with power to send for
persons, papers, and records.
On the 14th, a message was received from the Senate, notifying the House,
that they would take proper order on the impeachment, of which due notice
should be given to the House.
On the 26th, Mr. RANDOLPH, from the committee appointed for that
purpose, reported articles of impeachment against Samuel Chase. No order
was taken on the report during the remainder of the session, which
terminated the next day.
At the ensuing session of Congress, on the 6th of November, 1804, on the
motion of Mr. J. RANDOLPH, the articles of impeachment were referred to
Messrs. J. RANDOLPH, J. CLAY, EARLY, BOYLE, and J. RHEA of Tennessee.
On the 30th of November, Mr. RANDOLPH reported articles of impeachment
against Samuel Chase, in substance not dissimilar from those reported at
the last session, with the addition of two new articles.
This report was made the order for the 3d of December. On that and the
ensuing day the House took the articles into consideration, to all of
which they agreed, according to the following votes:
Yeas. Nays.
Art. 1 83 34
2 83 35
3 84 34
4 84 34
5 72 45
6 73 42
7 73 42
8 1st sec. 74 32
8 2nd sec. 78 32
On the 5th, the House proceeded to the choice, by ballot, of seven
managers to conduct the impeachment; and on counting the votes, Messrs.
J. RANDOLPH, RODNEY, NICHOLSON, EARLY, BOYLE, NELSON, and G. W. CAMPBELL,
appeared to be elected.
On a subsequent day, Mr. NELSON having declined his appointment, on
account of absence, Mr. CLARK was chosen in his place.
The following resolution was then adopted:
_Resolved_, That the articles agreed to by this House be
exhibited in the name of themselves, and of all the people
of the United States, against Samuel Chase, in maintenance
of their impeachment against him, for high crimes and
misdemeanors, be carried to the Senate by the managers
appointed to conduct the said impeachment.
The Senate having appointed the 7th of December for receiving the
articles of impeachment, the managers repaired on that day, at 1 o’clock,
to the Senate Chamber. Having taken seats assigned them within the bar,
and the Sergeant-at-Arms having proclaimed silence, Mr. J. RANDOLPH read
the foregoing articles: whereupon the President of the Senate informed
the managers that the Senate would take proper order on the subject of
the impeachment, of which due notice should be given to the House of
Representatives. The managers delivered the articles of impeachment at
the table and withdrew.
On the 10th of December, the Senate, sitting as a High Court of
Impeachments, adopted the following resolution:
_Resolved_, That the Secretary be directed to issue a
summons to Samuel Chase, one of the Associate Justices of
the Supreme Court of the United States, to answer certain
articles of impeachment exhibited against him by the House
of Representatives on Friday last: That the said summons be
returnable the 2d day of January, and he served at least
fifteen days before the return day thereof.
On the 24th and 31st of December, the Senate adopted the following rules
of proceeding, to be observed in cases of impeachment.
1. Whensoever the Senate shall receive notice from the House of
Representatives, that managers are appointed on their part, to
conduct an impeachment against any person, and are directed to
carry such articles to the Senate, the Secretary of the Senate
shall immediately inform the House of Representatives, that
the Senate is ready to receive the managers for the purpose of
exhibiting such articles of impeachment, agreeably to the said
notice.
2. When the managers of an impeachment shall be introduced to
the bar of the Senate, and shall have signified that they are
ready to exhibit articles of impeachment against any person,
the President of the Senate shall direct the Sergeant-at-Arms
to make proclamation; who shall, after making proclamation,
repeat the following words: “All persons are commanded to keep
silence, on pain of imprisonment, while the grand inquest of
the nation is exhibiting to the Senate of the United States,
articles of impeachment against ---- ----;” after which the
articles shall be exhibited, and then the President of the
Senate shall inform the managers, that the Senate will take
proper order on the subject of the impeachment, of which due
notice shall be given to the House of Representatives.
3. A summons shall issue, directed to the person impeached, in
the form following:
_The United States of America, ss._
The Senate of the United States, to ----, greeting:
Whereas, the House of Representatives of the United States of
America, did, on the ---- day of ----, exhibit to the Senate
articles of impeachment against you, the said ----, in the
words following, viz: [here recite the articles] and did demand
that you the said ---- should be put to answer the accusations
as set forth in said articles; and that such proceedings,
examinations, trials, and judgments, might be thereupon had,
as are agreeable to law and justice: You, the said ----, are
therefore hereby summoned, to be, and appear before the Senate
of the United States of America, at their Chamber in the City
of Washington, on the ---- day of ----, then and there to
answer to the said articles of impeachment, and then and there
to abide by, obey, and perform such orders and judgments as
the Senate of the United States shall make in the premises,
according to the Constitution and laws of the United States.
Hereof you are not to fail.
Witness, ----, Vice President of the United States of America,
and President of the Senate thereof, at the City of Washington,
this ---- day of ----, in the year of our Lord ----, and of the
Independence of the United States, the ----.
Which summons shall be signed by the Secretary of the Senate, and sealed
with their seal, and served by the Sergeant-at-Arms to the Senate, or by
such other person as the Senate shall specially appoint for that purpose;
who shall serve the same, pursuant to the directions given in the form
next following:
4. A precept shall be endorsed on said writ of summons, in the form
following, viz:
_United States of America, ss._
The Senate of the United States, to ----, greeting:
You are hereby commanded to deliver to, and leave with ----,
if to be found, a true and attested copy of the within writ of
summons, together with a like copy of this precept, showing
him both; or in case he cannot with convenience be found, you
are to leave true and attested copies of the said summons and
precept, at his usual place of residence, and in whichsoever
way you perform the service, let it be done at least ---- days
before the appearance day mentioned in said writ of summons.
Fail not, and make return of this writ of summons and precept,
with your proceedings thereon endorsed, on or before the
appearance day mentioned in said writ of summons.
Witness, ----, Vice President of the United States of America,
and President of the Senate thereof, at the City of Washington,
this ---- day of ----, in the year of our Lord ----, and of the
Independence of the United States, the ----.
Which precept shall be signed by the Secretary of the Senate, and sealed
with their seal.
5. Subpœnas shall be issued by the Secretary of the Senate, upon
the application of the managers of the impeachment, or of the party
impeached, or his counsel, in the following form, to wit:
To ----, greeting:
You, and each of you, are hereby commanded to appear before the
Senate of the United States, on the ---- day of ----, at the
Senate Chamber, in the City of Washington, then and there to
testify your knowledge in the cause which is before the Senate,
in which the House of Representatives have impeached ----. Fail
not.
Witness, ----, Vice President of the United States of America,
and President of the Senate thereof, at the City of Washington,
this ---- day of ----, in the year of our Lord ----, and of the
Independence of the United States, the ----.
Which shall be signed by the Secretary of the Senate, and sealed with
their seal.
Which subpœnas shall be directed, in every case, to the Marshal of the
district, where such witnesses respectively reside, to serve and return.
6. The form of direction to the Marshal, for the service of the subpœna,
shall be as follows:
The Senate of the United States of America, to the Marshal of
the district of ----:
You are hereby commanded to serve and return the within
subpœna, according to law.
Dated at Washington, this ---- day of ----, in the year of our
Lord ----, and of the Independence of the United States, the
----.
_Secretary of the Senate._
7. The President of the Senate shall direct all necessary preparations in
the Senate Chamber, and all the forms of proceeding, while the Senate are
sitting for the purpose of trying an impeachment, and all forms during
the trial, not otherwise specially provided for by the Senate.
8. He shall also be authorized to direct the employment of the Marshal
of the District of Columbia, or any other person or persons, during the
trial, to discharge such duties as may be prescribed by him.
9. At twelve o’clock of the day appointed for the return of the summons
against the person impeached, the legislative and executive business
of the Senate shall be suspended and the Secretary of the Senate shall
administer an oath to the returning officer, in the form following, viz:
“I, ----, do solemnly swear, that the return made and subscribed by me,
upon the process issued on the ---- day of ----, by the Senate of the
United States, against ----, is truly made, and that I have performed
said services as therein described. So help me God.” Which oath shall be
entered at large on the records.
10. The person impeached shall then be called to appear, and answer the
articles of impeachment exhibited against him. If he appears, or any
person for him, the appearance shall be recorded, stating particularly,
if by himself, or if by agent or attorney; naming the person appearing,
and the capacity in which he appears. If he does not appear, either
personally, or by agent or attorney, the same shall be recorded.
11. At twelve o’clock of the day appointed for the trial of an
impeachment, the Legislative and Executive business of the Senate shall
be postponed. The Secretary shall then administer the following oath or
affirmation to the President:
“You solemnly swear, or affirm, that in all things appertaining to the
trial of the impeachment of ----, you will do impartial justice according
to the Constitution and laws of the United States.”
12. And the President shall administer the said oath or affirmation to
each Senator present.
The Secretary shall then give notice to the House of Representatives,
that the Senate is ready to proceed upon the impeachment of ----, in the
Senate Chamber, which Chamber is prepared with accommodations for the
reception of the House of Representatives.
13. Counsel for the parties shall be admitted to appear, and be heard
upon an impeachment.
14. All motions made by the parties, or their counsel, shall be addressed
to the President of the Senate, and if he shall require it, shall
be committed to writing, and read at the Secretary’s table; and all
decisions shall be had by yeas and nays, and without debate, which shall
be entered on the records.
15. Witnesses shall be sworn in the following form, to wit: “You ---- do
swear, (or affirm, as the case may be,) that the evidence you shall give
in the case now depending between the United States and ----, shall be
the truth, the whole truth, and nothing but the truth. So help you God.”
Which oath shall be administered by the Secretary.
16. Witnesses shall be examined by the party producing them, and then
cross-examined in the usual form.
17. If a Senator is called as a witness, he shall be sworn, and give his
testimony standing in his place.
18. If a Senator wishes a question to be put to a witness, it shall be
reduced to writing and put by the President.
19. At all times, whilst the Senate is sitting upon the trial of an
impeachment, the doors of the Senate Chamber shall be kept open.
HIGH COURT OF IMPEACHMENTS.
WEDNESDAY, January 2, 1805.
The Court having been opened by proclamation,
The return made by the Sergeant-at-Arms was read, as follows:
“I, James Mathers, Sergeant-at-Arms to the Senate of the United
States, in obedience to the within summons to me directed, did
proceed to the residence of the within named Samuel Chase, on
the 12th day of December, 1804, and did then and there leave a
true copy of the said writ of summons, together with a true
copy of the articles of impeachment annexed, with him the said
Samuel Chase.
“JAMES MATHERS.”
After which the Secretary administered to him the oath as follows:
“You, James Mathers, Sergeant-at-Arms to the Senate of the
United States, do solemnly swear, that the return made and
subscribed by you, upon the process issued on the 10th day of
December last, by the Senate of the United States, against
Samuel Chase, one of the Associate Justices of the Supreme
Court, is truly made, and that you have performed said services
as therein described. So help you God.”
SAMUEL CHASE, having been solemnly called, appeared.
The PRESIDENT of the Senate (Mr. BURR) informed Mr. CHASE, that having
been summoned to answer to the articles of impeachment exhibited against
him by the House of Representatives, the Senate were ready to receive any
answer he had to make to them.
Mr. CHASE requested the indulgence of a chair,[19] which was immediately
furnished.
After being seated for a short time, Mr. CHASE rose, and commenced the
following address to the Senate, which he read from a paper that he held
in his hand:
“Mr. President: I appear, in obedience to a summons from this honorable
Court, to answer articles of impeachment exhibited against me, by the
honorable the House of Representatives of the United States.
“To these articles, a copy of which was delivered to me with the summons,
I say that I have committed no crime or misdemeanor whatsoever, for which
I am subject to impeachment according to the Constitution of the United
States. I deny, with a few exceptions, the acts with which I am charged;
I shall contend, that all acts admitted to have been done by me were
_legal_; and I deny, in every instance, the _improper_ intentions with
which the acts charged are alleged to have been done, and in which their
supposed criminality altogether consists.”
The PRESIDENT reminded Mr. CHASE that this was the day appointed to
receive any answer he might make to the articles of impeachment.
Mr. CHASE said his purpose was to request the allowance of further time
to put in his answer.
The PRESIDENT desired him to proceed.
Mr. CHASE proceeded in his address; and having finished it, was desired
by the PRESIDENT, if he had any motion to make, to reduce it to writing,
and hand it to the Secretary.
Whereupon, Mr. CHASE submitted the following motion:
“I solicit this honorable Court to allow me until the first day
of the next session, to put in my answer, and to prepare for my
trial.”
The PRESIDENT informed Mr. Chase, that, the Court would take time to
consider his motion.[20]
The Senate withdrew to a private apartment, where debate arose on the
question, whether it was not incumbent on the Senators to take the
oath required by the constitution, before they took into consideration
the motion of Mr. Chase, which issued in the adoption of the following
resolution:
_Resolved_, That, on the meeting of the Senate, to-morrow,
before they proceed to any business on the articles of
impeachment before them, and before any decision of any
question, the oath prescribed by the rules, shall be
administered to the President and members of the Senate.
On the ensuing day, previously to the entrance of the Senate into the
public room, considerable debate took place on the motion of Mr. Chase,
without any decision being made.
THURSDAY, January 3.
The Court was opened by proclamation about two o’clock.
The oath prescribed was administered to the President by the Secretary.
The PRESIDENT administered the oath prescribed to the following members:
Messrs. Adams, Anderson, Baldwin, Bradley, Breckenridge, Brown, Condit,
Dayton, Ellery, Franklin, Giles, Hillhouse, Howland, Jackson, Mitchill,
Moore, Olcott, Pickering, Smith of Maryland, Smith of New York, Smith of
Ohio, Smith of Vermont, Sumter, Tracy, White, Worthington, and Wright.
And the affirmation was administered to Messrs. Logan, Maclay, and Plumer.
The PRESIDENT stated that he had received a letter from the defendant,
enclosing an affidavit that further time was necessary for him to prepare
for trial; which affidavit was read, as follows:
_City of Washington, ss_:
Samuel Chase made oath on the Holy Evangels of Almighty God,
that it is not in his power to obtain information respecting
the facts alleged in the articles of impeachment to have
taken place in the city of Philadelphia in the trial of John
Fries; or of the facts alleged to have taken place in the city
of Richmond, in the trial of James T. Callender, in time to
prepare and put in his answer, and to proceed to trial, with
any probability that the same could be finished on or before
the fifth day of March next. And further, that it is not in his
power to procure information of the names of the witnesses,
whom he thinks it may be proper and necessary for him to
summon, in time to obtain their attendance, if his answer could
be prepared in time sufficient for the finishing of the said
trial, before the said fifth day of March next; and the said
Samuel Chase further made oath, that he believes it will not be
in his power to obtain the advice of counsel, to prepare his
answer, and to give him their assistance on the trial, which he
thinks necessary, if the said trial should take place during
the present session of Congress; and that he verily believes,
if he had, at this time full information of facts, and of the
witnesses proper for him to summon, and if he had also the
assistance of counsel, that he could not prepare the answer he
thinks he ought to put in, and be ready for his trial, within
the space of four or five weeks from this time. And further,
that his application to the honorable the Senate, for time
to obtain the information of facts, in order to prepare his
answer, and for time to procure the attendance of necessary
witnesses, and to prepare for his defence in the trial, and to
obtain the advice and assistance of counsel, is not made for
the purpose of delay, but only for the purpose of obtaining a
full hearing of the articles of impeachment against him, in
their real merits.
SAMUEL CHASE.
Sworn to, this third day of January, 1805, before
SAMUEL HAMILTON.
Whereupon the following motion was made by Mr. BRADLEY:
“_Ordered_, That Samuel Chase file his answer, with the
Secretary of the Senate, to the several articles of impeachment
exhibited against him, by the House of Representatives, on or
before the ---- day of ----.”
On motion, by Mr. BRECKENRIDGE, to fill the blank with the words “the
fourth day of February next,” the yeas and nays being taken, it passed in
the affirmative--yeas 22, nays 8, as follows:
YEAS.--Messrs. Adams, Anderson, Baldwin, Breckenridge, Brown,
Condit, Ellery, Franklin, Giles, Howland, Jackson, Logan,
Maclay, Mitchill, Moore, Smith of Maryland, Smith of New York,
Smith of Ohio, Smith of Vermont, Sumter, Worthington, and
Wright.
NAYS.--Messrs. Bradley, Dayton, Hillhouse, Olcott, Pickering,
Plumer, Tracy, and White.
_Ordered_, That the Secretary notify the House of Representatives, and
Samuel Chase, thereof.
[Between this day, and that assigned for receiving the answer of Mr.
Chase, the Senate Chamber was fitted up in a style of appropriate
elegance. Benches, covered with crimson, on each side, and in a line
with the chair of the President, were assigned to the members of the
Senate. On the right and in front of the chair, a box was assigned to the
Managers, and on the left a similar box to Mr. Chase and his counsel, and
chairs allotted to such friends as he might introduce. The residue of
the floor was occupied with chairs for the accommodation of the members
of the House of Representatives; and with boxes for the reception of the
foreign Ministers, and civil and military officers of the United States.
On the right and left of the chair, at the termination of the benches
of the members of the Court, boxes were assigned to stenographers.
The permanent gallery was allotted to the indiscriminate admission of
spectators. Below this gallery, and above the floor of the House, a
new gallery was raised, and fitted up with peculiar elegance, intended
primarily for the exclusive accommodation of ladies. But this feature
of the arrangement, made by the Vice President, was at an early period
of the trial abandoned, it having been found impracticable to separate
the sexes! At the termination of this gallery, on each side, boxes
were specially assigned to ladies attached to the families of public
characters. The preservation of order was devolved on the Marshal of the
District of Columbia, who was assisted by a number of deputies.]
TRIAL OF SAMUEL CHASE.
MONDAY, February 4, 1805.
About a quarter before ten o’clock the Court was opened by proclamation,
all the members of the Senate, thirty-four, attending.
The Chamber of the Senate, which is very extensive, was soon filled with
spectators, a large portion of whom consisted of ladies, who continued,
with little intermission, to attend during the whole course of the trial.
The oath prescribed was administered to Mr. BAYARD, Mr. COCKE, Mr.
GAILLARD, and Mr. STONE, members of the Court, who were not present when
it was before administered.
_Ordered_, That the Secretary give notice to the House of Representatives
that the Senate are in their public chamber, and are ready to proceed
on the trial of Samuel Chase; and that seats are provided for the
accommodation of the members.
In a few minutes the Managers, viz: Messrs. J. RANDOLPH, RODNEY,
NICHOLSON, BOYLE, G. W. CAMPBELL, EARLY, and CLARK, accompanied by the
House of Representatives in Committee of the Whole, entered and took
their seats.
SAMUEL CHASE being called to make answer to the articles of impeachment,
exhibited against him by the House of Representatives, appeared, attended
by Messrs. HARPER, MARTIN, and HOPKINSON, his counsel; to whom seats were
assigned.
The PRESIDENT, after stating to Mr. CHASE the indulgence of time which
had been allowed, inquired if he was prepared to give in his answer?
Mr. CHASE said he had prepared it, as well as circumstances would permit;
and submitted the following motion:
“Samuel Chase moves for permission to read his answer, by
himself and his counsel, at the bar of this honorable Court.”
The PRESIDENT asked him if it was the answer on which he meant to rely?
to which he replied in the affirmative.
The motion being agreed to by a vote of the Senate, Mr. CHASE commenced
the reading of his answer, (in which he was assisted by Messrs. HARPER
and HOPKINSON,) as follows:[21]
This respondent, in his proper person, comes into the said Court, and
protesting that there is no high crime or misdemeanor particularly
alleged in the said articles of impeachment, to which he is, or can be
bound by law to make answer; and saving to himself now, and at all
times hereafter, all benefit of exception to the insufficiency of the
said articles, and each of them, and to the defects therein appearing in
point of law, or otherwise; and protesting also, that he ought not to be
injured in any manner, by any words, or by any want of form in this his
answer; he submits the following facts and observations by way of answer
to the said articles.
The first article relates to his supposed misconduct in the trial of
John Fries, for treason, before the circuit court of the United States
at Philadelphia, in April and May, 1800; and alleges that he presided at
that trial, and that, “unmindful of the solemn duties of his office, and
contrary to the sacred obligation by which he stood bound to discharge
them faithfully and impartially, and without respect to persons,” he
did then, “in his judicial capacity, conduct himself in a manner highly
arbitrary, oppressive, and unjust.”
This general accusation, too vague in itself for reply, is supported by
three specific charges of misconduct:
1st. “In delivering an opinion, in writing, on the question of law,
on the construction of which the defence of the accused materially
depended:” which opinion, it is alleged, tended to prejudice the minds of
the jury against the case of the said John Fries, the prisoner, before
counsel had been heard in his favor.
2d. “In restricting the counsel for the said John Fries, from recurring
to such English authorities as they believed apposite; or from citing
certain statutes of the United States which they deemed illustrative of
the positions, upon which they intended to rest the defence of their
client.”
3d. “In debarring the prisoner from his constitutional privilege of
addressing the jury (through his counsel) on the law, as well as on the
fact, which was to determine his guilt or innocence, and at the same
time endeavoring to wrest from the jury their indisputable right to hear
argument, and determine upon the question of law, as well as the question
of fact, involved in the verdict which they were required to give.”
This first article then concludes, that in consequence of this
irregular conduct of this respondent, “the said John Fries was deprived
of the right secured to him by the eighth article amendatory of the
constitution, and was condemned to death, without having been heard by
counsel, in his defence.”
In the year 1794, an insurrection took place in four of the western
counties of Pennsylvania, with a view of resisting, and preventing by
force the execution of these two statutes; and a circuit court of the
United States, held at Philadelphia, for the district of Pennsylvania, in
the month of April, in the year 1795, by William Patterson, Esq., then
one of the Associate Justices of the Supreme Court of the United States,
and the above-mentioned Richard Peters, then district judge of the United
States, for the district of Pennsylvania, two persons, who had been
concerned in the above-named insurrection, namely, Philip Vigol and John
Mitchell, were indicted for treason, of levying war against the United
States, by resisting and preventing by force the execution of the two
last-mentioned acts of Congress; and were, after a full and very solemn
trial, convicted of the indictments and sentenced to death. They were
afterwards pardoned by George Washington, then President of the United
States.
In the first of these trials, that of Vigol, the defence of the prisoner
was conducted by very able counsel, one of whom, William Lewis, Esq.,
is the same person who appeared as counsel for John Fries, in the trial
now under consideration. Neither that learned gentleman, nor his able
colleague, then thought proper to raise the question of law, “whether
resisting and preventing by armed force the execution of a particular law
of the United States, be a ‘levying of war against the United States,’”
according to the true meaning of the constitution? although a decision
of this question in the negative must have acquitted the prisoner. But
in the next trial, that of Mitchell, this question was asked on the part
of the prisoner, and was very fully and ably discussed by his counsel;
and it was solemnly determined by the Court, both the judges concurring,
“that to resist, or prevent by armed force, the execution of a particular
law of the United States, is a levying of war against the United
States, and consequently is treason, within the true meaning of the
constitution.” The decision, according to the best established principles
of our jurisprudence, became a precedent for all courts of equal or
inferior jurisdiction; a precedent which, although not absolutely
obligatory, ought to be viewed with very great respect, especially by the
court in which it was made, and ought never to be departed from, but on
the fullest and clearest conviction of its incorrectness.
On the 9th of July, an act of Congress was passed, providing for a
valuation of lands and dwelling-houses, and an enumeration of slaves
throughout the United States; and directing the appointment of
commissioners and assessors for carrying it into execution; and on the
4th day of July, in the same year, a direct tax was laid by another act
of Congress of that date, on the lands, dwelling-houses, and slaves, so
to be valued and enumerated.
In the months of February and March, A. D. 1799, an insurrection
took place in the counties of Bucks and Northampton, in the State of
Pennsylvania, for the purpose of resisting and preventing by force the
execution of the two last-mentioned acts of Congress, and particularly
that for the valuation of lands and dwelling-houses. John Fries, the
person mentioned in the article of impeachment now under consideration,
was apprehended and committed to prison, as one of the ringleaders of
this insurrection; and at a circuit court of the United States, held
at Philadelphia, in and for the district of Pennsylvania, in the month
of April, A. D. 1799, he was brought to trial for this offence, on an
indictment for treason, by levying war against the United States, before
James Iredell, Esq., then one of the Associate Justices of the Supreme
Court of the United States, who presided in the said court, according
to law, and the above-mentioned Richard Peters, then district judge of
the United States, for the district of Pennsylvania, who sat in the said
circuit court as assistant judge.
In this trial, which was conducted with great solemnity, and occupied
nine days, the prisoner was assisted by William Lewis and Alexander
James Dallas, Esqs., two very able and eminent counsellors; the former
of whom, William Lewis, is the person who assisted, as above mentioned,
in conducting the defence of Vigol, on a similar indictment. These
gentlemen, finding that the facts alleged were fully and undeniably
proved, by a very minute and elaborate examination of witnesses, thought
proper to rest the case of the prisoner on the question of law which had
been determined in the cases of Vigol and Mitchell, above mentioned,
and had then been acquiesced in, but which they thought proper again to
raise. They contended, “that to resist by force of arms a particular law
of the United States, does not amount to levying war against the United
States, within the true meaning of the constitution, and therefore is not
treason, but a riot only.” This question they argued at great length,
and with all the force of their learning and genius; and after a full
discussion at the bar, and the most mature deliberation by the Court,
the learned and excellent judge who then presided, and who was no less
distinguished by his humanity and tenderness towards persons tried before
him, than by his extensive knowledge and great talents as a lawyer,
pronounced the opinion of himself and his colleague, “that to resist, or
prevent by force, the execution of a particular law of the United States,
does amount to levying war against them, within the true meaning of the
constitution, and does, therefore, constitute the crime of treason:”
thereby adding the weight of another and more solemn decision to the
precedent which had been established in the above-mentioned cases of
Vigol and Mitchell.
Under this opinion of the Court on the question of law, the jury, having
no doubt as to the facts, found the said John Fries guilty of treason
on the above-mentioned indictment. But a new trial was granted by the
Court, not by reason of any doubt as to the correctness of the decision
on the question of law, but solely on the ground, as this respondent hath
understood and believes, that one of the jurors of the petit jury, after
he was summoned, but before he was sworn on the trial, had made some
declaration unfavorable to the prisoner.
On the 11th day of April, 1800, and from that day until the 2d day of
May in the same year, a circuit court of the United States was held
at Philadelphia, in and for the district of Pennsylvania, before this
respondent, then one of the Associate Justices of the Supreme Court of
the United States, and the above-mentioned Richard Peters, then district
judge of the United States for the district of Pennsylvania. At this
court the indictment on which the said John Fries had been convicted as
above mentioned, was quashed _ex officio_ by William Rawle, Esq., then
attorney of the United States for the district of Pennsylvania, and a new
indictment was by him preferred against the said John Fries, for treason
of levying war against the United States, by resisting and preventing by
force in the manner above set forth, the execution of the above-mentioned
acts of Congress, for the valuation of lands and dwelling-houses, and the
enumeration of slaves, and for levying and collecting a direct tax. This
indictment, of which a true copy, marked No. 1, is herewith exhibited
by this respondent, who prays that it may be taken as part of this his
answer, being found by the grand jury on the 16th day of April, 1800,
the said John Fries was on the same day arraigned thereon, and plead
not guilty. William Lewis, and Alexander James Dallas, Esqs., the same
persons who had conducted his defence at his former trial, were again
at his request assigned by the Court as his counsel; and his trial was
appointed to be had on Tuesday the 22d day of the last-mentioned month of
April.
After this indictment was found by the grand jury, this respondent
considered it with great care and deliberation, and finding from the
three overt acts of treason which it charged, that the question of law
arising upon it was the same question which had already been decided
twice in the same court, on solemn argument and deliberation, and once
in that very case, he considered the law as settled by those decisions,
with the correctness of which, on full consideration, he was entirely
satisfied; and by the authority of which he should have deemed himself
bound, even had he regarded the question as doubtful in itself. They are
moreover in perfect conformity with the uniform tenor of decisions in the
courts of England and Great Britain, from the Revolution in 1688 to the
present time, which, in his opinion, added greatly to their weight and
authority.
It was for these reasons that on the 22d day of April, 1800, when the
said John Fries was brought into court, and placed in the prisoners’
box for trial, but before the petit jury were impanelled to try him,
this respondent informed the above-mentioned William Lewis, one of his
counsel, the aforesaid Alexander James Dallas not being then in court,
“that the Court had deliberately considered the indictment against John
Fries for treason, and the three several overt acts of treason stated,
therein: that the crime of treason was defined by the Constitution of
the United States. That as the Federal Legislature had the power to
make, alter, or repeal laws, so the judiciary only had the power, and
it was their duty, to declare, expound and interpret the Constitution
and laws of the United States. That it was the duty of the Court, in
all criminal cases, to state to the petit jury their opinion of the law
arising on the facts; but the petit jury, in all criminal cases, were
to decide both the law and the facts, on a consideration of the whole
case. That there must be some constructive exposition of the terms used
in the constitution, “levying war against the United States.” That the
question, what acts amounted to levying war against the United States,
or the Government thereof, was a question of law, and had been decided
by Judges Patterson and Peters, in the cases of Vigol and Mitchell, and
by Judges Iredell and Peters, in the case of John Fries, prisoner at the
bar, in April 1799. That Judge Peters remained of the same opinion, which
he had twice before delivered, and he, this respondent, on long and great
consideration, concurred in the opinion of Judges Patterson, Iredell, and
Peters. That to prevent unnecessary delay, and to save time on the trial
of John Fries, and to prevent a delay of justice, in the great number of
civil causes depending for trial at that term, the Court had drawn up in
writing their opinion of the law, arising on the overt acts stated in the
indictment against John Fries; and had directed David Caldwell, their
clerk, to make out three copies of their opinion, one to be delivered to
the attorney of the district, one to the counsel for the prisoner, and
one to the petit jury, after they shall have been impanelled and heard
the indictment read to them by the clerk, and after the district attorney
should have stated to them the law on the overt acts alleged in the
indictment, as it appeared to him.”
After these observations, this respondent delivered one of the
above-mentioned copies to, the aforesaid William Lewis, then attending
as one of the prisoner’s counsel; who read part of it, and then laid it
down on the table before him. Some observations were then made on the
subject, by him and the above-mentioned Alexander James Dallas, who had
then come into court; but this respondent doth not now recollect those
observations, and cannot undertake to state them accurately.
As to the second specific charge adduced in support of the first article
of impeachment, which accuses this respondent “of restricting the
counsel for the said Fries from recurring to such English authorities as
they believed apposite, or from citing certain statutes of the United
States, which they deemed illustrative of the positions upon which they
intended to rest the defence of their client,” this respondent admits
that he did, on the above-mentioned trial, express it as his opinion to
the aforesaid counsel for the prisoner, “that the decisions in England,
in cases of indictments for treason at common law, against the person
of the King, ought not to be read to the jury, on trials for treason
under the Constitution and statutes of the United States; because such
decisions could not inform, but might mislead and deceive the jury: that
any decisions on cases of treason, in the courts of England, before the
Revolution of 1688, ought to have very little influence in the courts
of the United States; that he would permit decisions in the courts of
England or of Great Britain, since the said Revolution, to be read
to the court or jury, for the purpose of showing what acts have been
considered by those courts, as a constructive levying of war against the
King of that country, in his legal capacity, but not against his person;
because levying war against _his Government_ was of the same nature as
levying war against _the Government of the United States_: but that such
decisions, nevertheless, were not to be considered as authorities binding
on the courts and juries of this country, but merely in the light of
opinions entitled to great respect, as having been delivered, after full
consideration, by men of great legal learning and ability.”
It is only, then, for the correctness of his motives in delivering these
opinions, that he can now be called to answer; and this correctness ought
to be presumed, unless the contrary appear by some direct proof, or some
violent presumption, arising from his general conduct on the trial, or
from the glaring impropriety of the opinion itself. For he admits that
cases may be supposed, of an opinion delivered by a judge, so palpably
erroneous, unjust, and oppressive, as to preclude the possibility of its
having proceeded from ignorance or mistake.
With respect to the statutes of the United States, which he is charged
with having prevented the prisoner’s counsel from citing on the aforesaid
trial, he denies that he prevented any act of Congress from being cited
either to the Court or jury on the said trial, or declared at any time
that he would not permit the prisoner’s counsel to read to the jury
or to the Court any act of Congress whatever. Nor does he remember or
believe that he expressed on the said trial any disapprobation of the
conduct of the circuit court, before whom the said case was first tried,
in permitting the act of Congress relating to crimes less than treason,
commonly called the _Sedition Act_, to be read to the jury. He admits
indeed that he was then and still is of opinion that the said act of
Congress was wholly irrelevant to the issue, in the trial of John Fries,
and therefore ought not to have been read to the jury, or regarded by
them.
And this respondent further answering saith, that after the
above-mentioned proceedings had taken place in the said trial, it was
postponed until the next day, (Wednesday, April 23, 1800,) when, at the
meeting of the Court, this respondent told both the above-mentioned
counsel for the prisoner, that, “to prevent any misunderstanding of
any thing that had passed the day before, he would inform them, that,
although the Court retained the same opinion of the law, arising on the
overt acts charged in the indictment against Fries, yet the counsel
would be permitted to offer arguments to the Court, for the purpose of
showing them that they were mistaken in the law; and that the Court,
if satisfied that they had erred in opinion, would correct it; and also
that the counsel would be permitted to argue before the petit jury that
the Court were mistaken in the law.” And this respondent added, that the
Court had given no opinion as to the facts in the case, about which both
the counsel had declared that there would be no controversy.
After some observations by the said William Lewis and Alexander James
Dallas, they both declared to the Court, “that they did not any longer
consider themselves as the counsel for John Fries, the prisoner.” This
respondent then asked the said John Fries, whether he wished the Court
to appoint other counsel for his defence? He refused to have other
counsel assigned; in which he acted, as this respondent believes and
charges, by the advice of the said William Lewis and Alexander James
Dallas: whereupon, the Court ordered the trial to be had on the next day,
Thursday, the 24th of April, 1800.
On that day the trial was proceeded in; and before the jurors were sworn,
they were, by the direction of the Court, severally asked on oath,
whether they were in any way related to the prisoner, and whether they
had ever formed or delivered any opinion as to his guilt or innocence, or
that he ought to be punished? Three of them answering in the affirmative,
were withdrawn from the panel. The said John Fries was then informed by
the Court, that he had a right to challenge thirty-five of the jury,
without showing any cause of challenge against them, and as many more as
he could show cause of challenge against. He did accordingly challenge
peremptorily thirty-four of the jury, and the trial proceeded. In the
evening, the Court adjourned till the next day, Friday, the 25th of
April; when, after the district attorney had stated the principal facts
proved by the witnesses, and had applied the law to those facts, this
respondent, with the concurrence of his colleague, the said Richard
Peters, delivered to the jury the charge contained and expressed in
exhibit marked No. 3, and herewith filed, which he prays may be taken as
part of this his answer.
Immediately after the petit jury had delivered their verdict, this
respondent informed the said Fries, from the bench, that if he, or any
person for him, could show any legal ground, or sufficient cause to
arrest the judgment, ample time would be allowed him for that purpose.
But no cause being shown, sentence of death was passed on the said Fries,
on Tuesday, the 2d day of May, 1800, the last day of the term; and he was
afterwards pardoned by John Adams, then President of the United States.
And this respondent further answering saith, that if the two instances of
misconduct, first stated in support of the general charge, contained in
the first article of impeachment, were true as alleged, yet the inference
drawn from them, viz: “that the said Fries was thereby deprived of the
benefit of counsel for his defence,” is not true. He insists that the
said Fries was deprived of the benefit of counsel, not by any misconduct
of this respondent, but by the conduct and advice of the above-mentioned
William Lewis and Alexander James Dallas, who having been, with their
own consent, assigned by the Court as counsel for the prisoner, withdrew
from his defence, and advised him to refuse other counsel when offered
to him by the Court, under pretence that the law had been prejudged,
and their liberty of conducting the defence, according to their own
judgment, improperly restricted by this respondent; but in reality,
because they knew the law and the facts to be against them, and the case
to be desperate, and supposed that their withdrawing themselves under
this pretence, might excite odium against the Court; might give rise to
an opinion that the prisoner had not been fairly tried; and in the event
of a conviction, which from their knowledge of the law and the facts they
knew to be almost certain, might aid the prisoner in an application to
the President for a pardon. That such was the real motive of the said
prisoner’s counsel for depriving their client of legal assistance on his
trial, this respondent is fully persuaded, and expects to make appear,
not only from the circumstances of the case, but from their own frequent
and public declarations.
Finally, this respondent, having thus laid before this honorable Court
a true state of his case, so far as respects the first article of
impeachment, declares, upon the strictest review of his conduct during
the whole trial of John Fries for treason, that he was not on that
occasion unmindful of the solemn duties of his office as judge; that he
faithfully and impartially, and according to the best of his ability and
understanding, discharged those duties towards the said John Fries; and
that he did not in any manner, during the said trial, conduct himself
arbitrarily, unjustly, or oppressively, as he is accused by the honorable
the House of Representatives.
And the said Samuel Chase, for the plea to the said first article
of impeachment, saith, that he is not guilty of any high crime or
misdemeanor, as in and by the said first article is alleged; and this he
prays may be inquired of by this honorable Court, in such manner as law
and justice shall seem to them to require.
The second article of impeachment charges, that this respondent, at the
trial of James Thompson Callender for a libel, in May 1800, did, “with
intent to oppress and procure the conviction of the said Callender,
overrule the objection of John Basset, one of the jury, who wished to be
excused from serving on the said trial, because he had made up his mind
as to the publication from which the words, charged to be libellous in
the indictment, were extracted.”
In answer to this article, this respondent admits that he did, as one of
the Associate Justices of the Supreme Court of the United States, hold
the circuit court of the United States, for the district of Virginia,
at Richmond, on Thursday, the 22d day of May, in the year 1800, and from
that day, till the 30th of the same month; when Cyrus Griffin, then
district judge of the United States for the district of Virginia, took
his seat in the said court; and that during the residue of that session
of the said court, which continued till the ---- day of June, in the same
year, this respondent and the said Cyrus Griffin held the said court
together. But how far any of the other matters charged in this article,
are founded in truth or law, appear from the following statement, which
he submits to this honorable Court, by way of answer to this part of the
accusation.
By an act of Congress passed on the 4th day of May, A. D. 1798, it is
among other things enacted, “That if any person shall write, print,
utter, or publish, or shall knowingly and wittingly assist and aid in
writing, printing, uttering, or publishing, any false, scandalous, and
malicious writing or writings against the President of the United States,
with intent to defame or to bring him into contempt or disrepute, such
person, being thereof convicted, shall be punished by fine, not exceeding
two thousand dollars, and by imprisonment, not exceeding two years;”
and “that if any person shall be prosecuted under this act, it shall
be lawful for him to give in evidence in his defence, the truth of the
matter contained in the publication charged as a libel; and the jury
shall have a right to determine the law and the fact, under the direction
of the Court, as in other cases,” as in and by the said act, commonly
called the _sedition law_, to which this respondent begs leave to refer
this honorable Court, will more fully appear.
At the meeting of the last above-mentioned circuit court, this
respondent, as required by the duties of his office, delivered a charge
to the grand jury, in which, according to his constant practice, and to
his duty as a judge, he gave in charge to them several acts of Congress
for the punishment of offences, and among them, the above-mentioned
act, called the sedition law; and directed the jury to make particular
inquiry concerning any breaches of these statutes or any of them, within
the district of Virginia. On the 24th day of May, 1800, the said jury
found an indictment against one James Thompson Callender, for printing
and publishing, against the form of the said act of Congress, a false,
scandalous, and malicious libel, called “The Prospect before Us,” against
John Adams, then President of the United States, in his official conduct
as President; as appears by an official copy of the said indictment,
marked exhibit No. 4, which this respondent begs leave to make part of
this his answer.
On Wednesday, the 28th day of the same month, May 1800, Philip Norbonne
Nicholas, Esq., now attorney-general of the State of Virginia, and
George Hay, Esq., now district attorney of the United States, for the
district of Virginia, appeared in the said circuit court as counsel for
the said Callender; and on Thursday the 3d of June following, his trial
commenced, before this respondent, and the said Cyrus Griffin, who then
sat as assistant judge. The petit jurors being called over, eight of them
appeared, namely, Robert Gamble, Bernard Mackham, John Barrell, William
Austin, William Richardson, Thomas Tinsley, Matthew Harvey, and John
Basset, who, as they came to the book to be sworn, were severally asked
on oath, by direction of the Court, “whether they had ever formed or
delivered any opinion respecting the subject-matter then to be tried, or
concerning the charges contained in the indictment?” They all answered in
the negative, and were sworn in chief to try the issue. The counsel for
the said Callender declaring that it was unnecessary to put this question
to the other four jurymen, William Mayo, James Hayes, Henry S. Shore, and
John Prior, they also were immediately sworn in chief. No challenge was
made by the said Callender or his counsel, to any of these jurors; but
the said counsel declared, that they would rely on the answer that would
be given by the said jurors to the question thus put by order of the
Court.
After the above-mentioned John Basset, whom this respondent supposes and
admits to be the person mentioned in the article of impeachment now under
consideration, had thus answered in the negative to the question put to
him by order of the Court, as above mentioned, which this respondent
states to be the legal and proper question to be put to jurors on such
occasions, he expressed to the Court his wish to be excused from serving
on the said trial, because he had made up his mind, or had formed
his opinion, “that the publication, called ‘The Prospect before Us,’
from which the words charged in the indictment as libellous were said
to be extracted, but which he had never seen, was, according to the
representation of it, which he had received, within the Sedition law.”
But the Court did not consider this declaration by the said John Basset
as a sufficient reason for withdrawing him from the jury, and accordingly
directed him to be sworn in chief.
In this opinion and decision, as in all the others delivered during the
trial in question, this respondent concurred with his colleague, the
afore-mentioned Cyrus Griffin, in whom none of these opinions have been
considered as criminal. He contends that the opinion itself was legal and
correct; and he denies that he concurred in it, under the influence of
any “spirit of persecution and injustice,” or with any “intent to oppress
and procure the conviction of the prisoner,” as is most untruly alleged
by the second article of impeachment. His reasons were correct and legal.
He will submit them with confidence to this honorable Court; which,
although it cannot condemn him for an incorrect opinion, proceeding from
an honest error in judgment, and ought not to take on itself the power
of inquiring into the correctness of his decisions, but merely that of
examining the purity of his motives; will, nevertheless, weigh his
reasons, for the purpose of judging how far they are of sufficient force
to justify a belief that they might have appeared satisfactory to him.
If they might have so appeared, if the opinion which he founded on them
be not so palpably and glaringly wrong, as to carry with it internal
evidence of corrupt motives, he cannot in delivering it have committed an
offence.
The juror in the present case had expressed no opinion. He had formed
no opinion as to the facts. He had never seen the “Prospect before
Us,” and, therefore, could have no fixed or certain opinion about its
nature or contents. They had been reported to him, and he had formed
an opinion that if they were such as reported, the book was within the
scope and operation of a law for the punishment of “false, scandalous and
malicious libels, against the President in his official capacity, written
or published with intent to defame him.” And who is there, that having
either seen the book or heard of it, had not necessarily formed the same
opinion?
But this juror had formed no opinion about the guilt or innocence of the
party accused; which depended on four facts wholly distinct from the
opinion which he had formed. First, whether the contents of the book
were really such as had been represented to him? Secondly, whether they
should, on the trial, be proved to be true? Thirdly, whether the party
accused was really the author or publisher of this book? And fourthly,
whether he wrote or published it “with intent to defame the President,
or to bring him into contempt or disrepute, or to excite against him the
hatred of the good people of the United States?” On all these questions,
the mind of the juror was perfectly at large, notwithstanding the opinion
which he had formed. He might, consistently with that opinion, determine
them all in the negative; and it was on them that the issue between the
United States and James Thompson Callender depended. Consequently, this
juror, notwithstanding the opinion which he had thus formed, did stand
indifferent as to the matter in issue, in the legal and proper sense,
and in the only sense in which such indifference can ever exist; and
therefore his having formed that opinion, was not such an excuse as could
have justified the Court in discharging him from the jury.
And the said Samuel Chase, for plea to the said second article of
impeachment, saith, that he is not guilty of any high crime or
misdemeanor, as in and by the said second article is alleged against him;
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
The third article of impeachment alleges that this respondent “with
intent to oppress and procure the conviction of the prisoner, did not
permit the evidence of John Taylor, a material witness in behalf of the
said Callender, to be given in, on pretence that the said witness could
not prove the truth of the whole of one of the charges contained in the
indictment, although the said charge embraced more than one fact.”
In answer to this charge, this respondent begs leave to submit the
following facts and observations:
The indictment against James Thompson Callender, which has been already
mentioned, and of which a copy is exhibited with this answer, consisted
of two distinct and separate counts, each of which contained twenty
distinct and independent charges, or sets of words. Each of those sets
of words was charged as a libel against John Adams, as President of the
United States, and the twelfth charge embraced the following words: “He
(meaning President Adams) was a professed aristocrat; he proved faithful
and serviceable to the British interest.” The defence set up was confined
to this charge, and was rested upon the truth of the words. To the other
nineteen charges no defence of any kind was attempted or spoken of,
except such as might arise from the supposed unconstitutionality of the
sedition law; which, if solid, applied to the twelfth charge as well as
to the other nineteen. It was to prove the truth of these words that John
Taylor, the person mentioned in the article of impeachment now under
consideration, was offered as a witness. It can hardly be necessary to
remind this honorable Court, that when an indictment for a libel contains
several distinct charges, founded on distinct sets of words, the party
accused, who in such cases is called the “traverser,” must be convicted,
unless he makes a sufficient defence against every charge. His innocence
on one, does not prove him innocent on the others. If the sedition
law should be considered as unconstitutional, the whole indictment,
including this twelfth charge, must fall to the ground, whether the
words in question were proved to be true or not. If the law should be
considered as constitutional, then the traverser, whether the words in
the twelfth charge were proved to be true or not, must be convicted on
the other nineteen charges, against which no defence was offered. This
conviction on nineteen charges would put the traverser as completely in
the power of the Court, by which the amount of the fine and the term of
the imprisonment were to be fixed, as a conviction upon all the twenty
charges. The imprisonment could not exceed two years, nor the fine be
more than two thousand dollars. If, then, this respondent were desirous
of procuring the conviction of the traverser, he was sure of his object
without rejecting the testimony of John Taylor. If his temper towards
the traverser were so vindictive as to make him feel anxious to obtain
an opportunity and excuse for inflicting on him the whole extent of
punishment permitted by the law, still a conviction on nineteen charges
afforded this opportunity and excuse as fully as a conviction on twenty
charges. One slander more or less, in such a publication as the “Prospect
before Us,” could surely be of no moment. To attain this object,
therefore, it was not necessary to reject the testimony of John Taylor.
That the Court did not feel this vindictive spirit is clearly evinced
by the moderation of the punishment, which actually was inflicted on the
traverser, after he was convicted of the whole twenty charges. Instead of
two thousand dollars, he was fined only two hundred, and was sentenced to
only nine months’ imprisonment, instead of two years. And this respondent
avers that he never felt or expressed a wish to go further; but that
in this decision, as well as in every other given in the course of the
trial, he fully and freely concurred with his colleague, Judge Griffin.
In the case under consideration, no proof was offered as to the
whole matter contained in the twelfth article. No witness except the
above-mentioned John Taylor was produced or mentioned. When a witness is
offered to a court and jury, it is the right and duty of the court to
require a statement of the matters intended to be proved by him. This is
the invariable practice of all our courts, and was done most properly
by this respondent and his colleague, on the occasion in question. From
the statement given by the traverser’s counsel of what they expected to
prove by the said witness, it appeared that his testimony could have no
possible application to any part of the indictment, except the twelfth
charge above mentioned, and but a very weak and imperfect application
even to that part. The Court, therefore, as it was their right and duty,
requested that the questions intended to be put to the witness should be
reduced to writing, and submitted to their inspection, so as to enable
them to judge more accurately, how far those questions were proper and
admissible. This being done, the questions were of the following tenor
and effect:
1st. “Did you ever hear Mr. Adams express any sentiments favorable to
monarchy, or ‘aristocracy,’ and what were they?”
2d. “Did you ever hear Mr. Adams, while Vice President, express his
disapprobation of the funding system?”
3d. “Do you know whether Mr. Adams did not, in the year 1794, vote
against the sequestration of British debts, and also against the bill for
suspending intercourse with Great Britain?”
The second question, it is manifest, had nothing to do with the charge;
for Mr. Adams’ approbation or disapprobation of the funding system could
not have the most remote tendency to prove that he was an aristocrat, or
had proved faithful and serviceable to the British interest. The third
question was in reality as far as the second from any connection with
the matter in issue, although its irrelevancy is not quite so apparent.
Mr. Adams’s having voted against the two measures alluded to in that
question, if he did in fact vote against them, could by no means prove
that he was “faithful and serviceable to the British interest,” in any
sense, much less with those improper and criminal views, with which the
publication in question certainly meant to charge him. The fact, if true,
was _no_ evidence to support such an inference, therefore the fact was
immaterial; and as it is the province and duty of the Court, in such
circumstances, to decide on the materiality of facts offered in evidence,
it follows clearly that it was the right and duty of the Court, in this
instance, to reject the third question; an affirmative answer to which
could have proved nothing in support of the defence.
For these reasons this respondent did concur with his colleague, the said
Cyrus Griffin, in rejecting the three above-mentioned questions; but not
any other testimony that the said John Taylor might have been able to
give.
And for plea to the said third article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said third article is alleged against him: this he prays
may be inquired of by this honorable Court, in such manner as law and
justice shall seem to them to require.
The fourth article of impeachment alleges, that during the whole course
of the trial of James Thompson Callender, above mentioned, the conduct
of this respondent was marked by “manifest injustice, partiality,
and intemperance;” and five particular instances of the “injustice,
partiality, and intemperance,” are adduced.
The first consists, “in compelling the prisoner’s counsel to reduce to
writing and submit to the inspection of the Court, for their admission or
rejection, all questions which the said counsel meant to propound to the
above-mentioned John Taylor, the witness.”
This respondent, in answer to this part of the article now under
consideration, admits that the Court, consisting of himself and the
above-mentioned Cyrus Griffin, did require the counsel for the traverser,
on the trial of James Thompson Callender, above mentioned, to reduce to
writing the questions which they intended to put to the said witness.
But he denies that it is more his act than the act of his colleague,
who fully concurred in this measure. The measure, as he apprehends and
insists, was legal and proper; his reasons for adopting it, and he
presumes those of his colleague, he will submit to this honorable Court,
in order to show that if he, in common with his colleague, committed an
error, it was an error into which the best and wisest men might have
honestly fallen.
The next circumstance stated by the article now under consideration,
as an instance and proof of “manifest injustice, partiality, and
intemperance” in this respondent, is his refusal to postpone the trial of
the said James Thompson Callender, “although an affidavit was regularly
filed, stating the absence of material witnesses on behalf of the
accused, and although it was manifest that, with the utmost diligence,
the attendance of such witnesses could not have been procured at that
term.”
This respondent, in answer to this part of the charge, admits that, in
the above-mentioned trial, the traverser’s counsel did move the court,
while this respondent sat in it alone, for a continuance of the trial
until the next term; not merely a postponement of the trial, as the
expressions used in this part of the article would seem to import;
and did file, as the groundwork of their motion, an affidavit of the
traverser, a true and official copy of which (marked exhibit No. 5) this
respondent herewith exhibits, and begs leave to make part of this answer;
but he denies that any sufficient ground for a continuance until the next
term was disclosed by this affidavit, as he trusts will clearly appear
from the following facts and observations:
The trial of an indictment at the term when it is found by the grand
jury, is a matter of course, which the prosecutor can claim as a right,
unless legal cause can be shown for a continuance. The prosecutor may
consent to a continuance, but if he withholds his consent, the Court
cannot grant a continuance without legal cause. Of the sufficiency and
legality of this cause, as of every other question of law, the Court must
judge; but it must decide on this, as on every other point, according to
the fixed and known rules of law.
One of the legal grounds, and the principal one on which such a
continuance may be granted, is the absence of competent and _material_
witnesses, whom the party cannot produce at the present term, but has a
_reasonable ground_ for expecting to be able to produce at the next term.
Analogous to this, is the inability to procure, at the present term,
legal and _material_ written testimony, which the party has a _reasonable
expectation_ of being able to procure at the next term.
Public justice will not permit the trial of offenders to be delayed,
on light or unfounded pretences. To wait for testimony which the party
really wished for, but did not expect to be able to produce within some
definite period, would certainly be a very light pretence; and to make
him the judge, how far there was reasonable expectation of obtaining the
testimony within the proper time, would put it in his power to delay the
trial on the most unfounded pretences. Hence the rule, that there must be
reasonable ground of expectation, in the judgment of the Court, that the
testimony may be obtained within the proper time.
It is therefore a settled and most necessary rule, that every application
for a continuance, on the ground of obtaining testimony, must be
supported by an affidavit, disclosing sufficient matter to satisfy
the Court, that the testimony wanted “is competent and material,” and
that there is “reasonable expectation of procuring it within the time
prescribed.” From a comparison of the affidavit in question with the
indictment, it will soon appear how far the traverser in this case
brought himself within this rule.
The absent witnesses, mentioned in the affidavit, are William Gardner,
of Portsmouth in New Hampshire; Tench Coxe, of Philadelphia, in
Pennsylvania; Judge Bee, of some place in South Carolina; Timothy
Pickering, lately of Philadelphia, in Pennsylvania, but of what place
at that time the deponent did not know; William B. Giles, of Amelia
County, in the State of Virginia; Stevens Thompson Mason, whose place
of residence is not mentioned in the affidavit, but was known to be in
Loudon County, in the State of Virginia; and General Blackburn, of Bath
County, in the said State. The affidavit also states, that the traverser
wished to procure, as material to his defence, authentic copies of
certain answers made by the President of the United States, Mr. Adams, to
addresses from various persons; and also, a book entitled “an Essay on
Canon and Feudal Law,” or entitled in words to that purport, which was
ascribed to the President, and which the traverser believed to have been
written by him; and also, evidence to prove that the President was in
fact the author of that book.
It is not stated, that the traverser had any reasonable ground to expect,
or did expect, to procure this book or evidence, or these authentic
copies, or the attendance of any one of these witnesses, at the next
term. Nor does he attempt to show in what manner the book, or the copies
of answers to addresses, were material, so as to enable the Court to
form a judgment on that point. Here, then, the affidavit was clearly
defective. His believing the book and copies to be material, was of no
weight, unless he showed to the Court sufficient grounds for entertaining
the same opinion. Moreover, he does not state where he supposes that
this book, and those authentic copies, may be found; so as to enable the
Court to judge, how far a reasonable expectation of obtaining them might
be entertained. On the ground of this book and these copies, therefore,
there was no pretence for a continuance. As to the witnesses, it is
manifest, that from their very distant and dispersed situation, there
existed no ground of reasonable expectation that their attendance could
be procured at the _next_ term, or at any subsequent time. Indeed, the
idea of postponing the trial of an indictment till witnesses could be
convened at Richmond, from South Carolina, New Hampshire, and the western
extremities of Virginia, is too chimerical to be seriously entertained.
Accordingly, the traverser, though in his affidavit he stated them to
be material, and declared that he could not procure their attendance at
that term, could not venture to declare, on oath, that he expected to
procure it at the next, or at any other time; much less that he had any
reasonable ground for such an expectation. On this ground, therefore, the
affidavit was clearly insufficient; and it was consequently the duty of
the Court to reject such application.
But the testimony of these witnesses, as stated in the affidavit, was
wholly immaterial; and, therefore, their absence was no ground for
a continuance, had there been reasonable ground for expecting their
attendance at the next term.
William Gardner and Tench Coxe were to prove that Mr. Adams had turned
them out of office, for their political opinions or conduct. This
applied to that part of the publication which constituted the matter of
the third charge in the indictment, in these words, “the same system of
persecution extended all over the continent. Every person holding an
office, must either quit it, or think and vote exactly with Mr. Adams.”
Judge Bee was to prove, that Mr. Adams had advised and requested him
by letter, in the year 1799, to deliver Thomas Nash, otherwise called
Jonathan Robbins, to the British Consul, in Charleston. This might
have had some application to the matter of the seventh charge; which
alleged that “the hands of Mr. Adams were reeking with the blood of the
poor, friendless Connecticut sailor.” Timothy Pickering was to prove
that Mr. Adams, while President, and Congress was in session, was many
weeks in possession of important despatches from the American Minister
in France, without communicating them to Congress. This testimony was
utterly immaterial; because, admitting the fact to be so, Mr. Adams was
not bound, in any respect, to communicate those despatches to Congress,
unless, in his discretion, he should think it necessary; and also,
because the fact, if true, had no relation to any part of the indictment.
There are, indeed, three charges, on which it might at first sight seem
to have some slight bearing. These are the eighth, the words furnishing
the matter of which are, “every feature in the administration of Mr.
Adams forms a distinct and additional evidence that he was determined,
at all events, to embroil this country with France;” the fourteenth,
the words stated in which allege, that “by sending these Ambassadors
to Paris, Mr. Adams and his British faction designed to do nothing but
mischief;” and the eighteenth, the matter of which states, “that in the
midst of such a scene of profligacy and usury, the President persisted
as long as he durst, in making his utmost efforts for provoking a French
war.” To no other charge in the indictment had the evidence of Timothy
Pickering, as stated in the affidavit, the remotest affinity. And surely,
it will not be pretended by any man, who shall compare this evidence with
the three charges above mentioned, that the fact intended to be proved
by it, furnished any evidence proper to go to a jury, in support of
either of those charges; that “every feature of his administration formed
a distinct and additional evidence of a determination, at all events,
to embroil this country with France,” that “in sending Ambassadors to
Paris, he intended nothing but mischief,” that “in the midst of a scene
of profligacy and usury, he persisted, as long as he durst, in making
his utmost effort for provoking a French war,” are charges, which surely
cannot be supported or justified, by the circumstance of his “keeping
in his possession, for several weeks, while Congress was in session,
despatches from the American Minister in France, without communicating
them to Congress,” which he was not bound to do, and which it was his
duty not to do, if he supposed that the communication, at an earlier
period, would be injurious to the public interest. The testimony of
William B. Giles and Stevens Thompson Mason was to prove that Mr. Adams
had uttered in their hearing certain sentiments favorable to aristocratic
or monarchical principles of Government.
This had no application except to a part of the twelfth charge; which
has been already shown to be wholly immaterial if taken separately, and
wholly incapable of a separate justification, if considered as part of
an entire charge. And, lastly, it was to be proved by General Blackburn,
that in his answer to an address, Mr. Adams avowed, “that there was a
party in Virginia which deserved to be humbled into dust and ashes,
before the indignant frowns of their injured, insulted, and offended
country.” There were but two charges in the indictment to which this
fact, if true, had the most distant resemblance. These are the fifteenth
and sixteenth, the words forming the matter of which, call Mr. Adams “an
hoary-headed libeller of the Governor of Virginia, who with all the fury,
but without the propriety or sublimity of Homer’s Achilles, bawled out,
to arms, then, to arms!” and “who, floating on the bladder of popularity,
threatened to make Richmond the centre point of a bonfire.” It would be
an abuse of the patience of this honorable Court, to occupy any part
of its time in proving that the fact intended to be proved by General
Blackburn, could not in the slightest degree support or justify such
charges as these.
To the third charge adduced in support of the article now under
consideration, the charge of using “unusual, rude, and contemptuous
expressions towards the prisoner’s counsel,” and of “falsely insinuating
that they wished to excite the public fears and indignation, and to
produce that insubordination to law to which the conduct of this
respondent did manifestly tend,” he cannot answer otherwise than by a
general denial. A charge so vague, admits not of precise or particular
refutation. He denies that there was any thing unusual or intentionally
rude or contemptuous in his conduct or his expressions towards the
prisoner’s counsel; that he made any false insinuation whatever
against them, or that his own conduct tended in any manner to produce
insubordination to law. On the contrary, it was his wish and intention to
treat the counsel with the respect due to their situation and functions,
and with the decorum due to his own character. He thought it his duty
to restrain such of their attempts as he considered improper, and to
overrule motions made by them, which he considered as unfounded in law;
but this it was his wish to accomplish in the manner least likely to
offend, from which every consideration concurred in dissuading him. He
did indeed think at that time, and still remains under the impression,
that the conduct of the traverser’s counsel, whether from intention or
not he will not undertake to say, was disrespectful, irritating, and
highly incorrect. That conduct which he viewed in this light, might have
produced some irritation in a temper naturally quick and warm, and that
this irritation might, notwithstanding his endeavors to suppress it, have
appeared in his manner and in his expressions, he thinks not improbable;
for he has had occasions for feeling and lamenting the want of sufficient
caution and self-command, in things of this nature. But he confidently
affirms, that his conduct in this particular was free from intentional
impropriety; and this respondent denies, that any part of his conduct
was such as ought to have induced the traverser’s counsel to “abandon
the cause of their client,” nor does he believe that any such cause did
induce them to take that step. On the contrary, he believes that it was
taken by them under the influence of passion, for some motive into which
this respondent forbears at this time to inquire. And this respondent
admits that the said traverser was convicted, and condemned to fine and
imprisonment, but not by reason of the abandonment of his defence by his
counsel; but because the charges against him were clearly proved, and no
defence was made or attempted against far the greater number of them.
The fourth charge in support of this article attributes to this
respondent “repeated and vexatious interruptions of the said counsel,
which at length induced them to abandon the cause of their client, who
was therefore convicted, and condemned to fine and imprisonment.” To this
charge, also, it is impossible to give any other answer but a general
denial. He avers that he never interrupted the traverser’s counsel
vexatiously, or except when he considered it his duty to do so.
Lastly, this respondent is charged, under this article, with an “indecent
solicitude, manifested by him, for the conviction of the accused,
unbecoming even a public prosecutor, but highly disgraceful to the
character of a judge, as it was subversive of justice.” This is another
charge of which it is impossible to give a precise refutation, and to a
general denial of which this respondent must therefore confine himself.
He denies that he felt any solicitude whatever for the conviction of the
traverser; other than the general wish natural to every friend of truth,
decorum, and virtue, that persons guilty of such offences as that of
which the traverser stood indicted, should be brought to punishment for
the sake of example.
And the said respondent for plea to the said fourth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said fourth article is alleged against him,
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to require.
The fifth article of impeachment charges this respondent with having
awarded “a capias against the body of the said James Thompson Callender,
indicted for an offence _not capital_, whereupon the said Callender was
arrested and committed to _close_ custody, contrary to law in that case
made and provided.”
This charge is rested, 1st, on the act of Congress of September 24, 1789,
entitled “An act to establish the judicial courts of the United States,”
by which it is enacted “that for any crime or offence against the United
States, the offender may be arrested, imprisoned, or bailed, agreeably
to the usual mode of process, in the State where such offender may be
found.” And, 2dly, on a law of the State of Virginia, which is said to
provide “that upon _presentment_ by any grand jury, of an offence _not
capital_, the Court shall order the clerk to issue a _summons_ against
the person or persons so offending, to appear and answer such presentment
at the _next_ court.” It is contended, in support of this charge, that
the act of Congress above mentioned made the State law the rule of
proceeding, and that the State law was violated by issuing a capias
against Callender, instead of a summons.
It will also appear, as this respondent believes, by a reference to the
laws and practice of Virginia, into which he has made all the inquiries
which circumstances and the shortness of time allowed him for preparing
his answer would permit, that all the cases in which a summons is
considered as the only proper process, are cases of petty offences,
which, on the presentment of a grand jury, are to be tried by the court
in a summary way, without the intervention of a petit jury. Therefore
these provisions had no application to the case of Callender, which
could be no otherwise proceeded on than by indictment, and trial on the
indictment by a petit jury.
And the said respondent, for plea to the said fifth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said fifth article is alleged against him;
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
The sixth article of impeachment alleges that this respondent, “with
intent to oppress and procure the conviction of the said James Thompson
Callender, did, at the court aforesaid, rule and adjudge the said
Callender to trial during the term at which he, the said Callender,
was presented and indicted, contrary to the law in that case made and
provided.”
This charge also is founded, 1st, on the act of Congress of September
24, 1789, above mentioned, which enacts, section 34, “that the laws of
the several States, except where the Constitution, treaties, or statutes
of the United States shall otherwise provide, shall be regarded as the
rules of decision, in trials at _common law_, in the courts of the United
States, in cases where they apply;” and, 2dly, on a law of the State of
Virginia, which is supposed to provide, “that in cases not capital, the
offender shall not be held to answer any presentment of a grand jury,
until the court next preceding that during which such presentment shall
have been made.” This law, it is contended, is made the role of decision
by the above-mentioned act of Congress, and was violated by the refusal
to continue the case of Callender till the next term.
In answer to this charge this respondent declares, that he was at the
time of making the above-mentioned decision wholly ignorant of any such
law of Virginia as that in question; that no such law was adduced or
mentioned by the counsel of Callender, in support of their motion for
a continuance; neither when they first made it, before this respondent
sitting alone, nor when they renewed it, after Judge Griffin had taken
his seat in court; that no such law was mentioned by Judge Griffin, who
concurred in overruling the motion for a continuance and ordering on the
trial; which he could not have done had he known that such a law existed,
or considered it as applicable to the case; and that this respondent
never heard of any such law until the articles of impeachment now under
consideration were reported, in the course of the present session of
Congress, by a committee of the House of Representatives.
And for plea to the said sixth article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said-article is alleged against him; and this he prays may
be inquired of by this honorable Court, in such manner as law and justice
shall seem to them to require.
The seventh article of impeachment relates to some conduct of this
respondent in his judicial capacity, at a circuit court of the United
States held at Newcastle, in the State of Delaware, in June, 1800. The
statement of this conduct, made in the article, is altogether erroneous;
but if it were true, this respondent denies that it contains any matter
for which he is liable to impeachment.
These charges amount in substance to this: that the respondent refused to
discharge a grand jury, on their request, which is every day’s practice,
and which he was bound to do, if he believed that the due administration
of justice required their longer attendance; that he directed the
attention of the grand jury to an offence against a statute of the United
States, which, he had been informed, was committed in the district; and
that he desired the District Attorney to aid the grand jury in their
inquiries concerning the existence and nature of this offence. By these
three acts, each of which it was his duty to perform, he is alleged “to
have degraded his high judicial functions, and tended to impair the
public confidence in, and respect for, the tribunals of justice, so
essential to the public welfare.”
That this honorable Court may be able to form correctly its judgment
concerning the transaction mentioned in this article, this respondent
submits the following statement of it, which he avers to be true, and
expects to prove:
On the 27th day of June, 1800, this respondent, as one Of the Associate
Justices of the Supreme Court of the United States, presided in the
circuit court of the United States, then held at Newcastle, in and for
the district of Delaware, and was assisted by Gunning Bedford, Esq., then
district judge of the United States for that district. At the opening
of the court on that day, this respondent, according to his duty and
his uniform practice, delivered a charge to the grand jury, in which he
gave in charge to them several statutes of the United States, and, among
others, an act of Congress, passed July 14th, 1798, entitled “An act in
addition to the act for the punishment of certain crimes against the
United States,” and commonly called the “sedition law.” He directed them
to inquire concerning any breaches of those statutes, and especially of
that commonly called the sedition law, within the district of Delaware.
On the same day, before the usual hour of adjournment, the grand jury
came into court, and informed the Court that they had found no indictment
or presentment, and had no business before them, for which reason they
wished to be discharged. This respondent replied, that it was earlier
than the usual hour of discharging a grand jury; and that business might
occur during the sitting of the court. He also asked them if they had
no information of publications within the district, that came under the
sedition law, and added, that he had been informed that there was a paper
called the _Mirror_, published at Wilmington which contained libellous
charges against the Government and President of the United States: that
he had not seen that paper, but it was their duty to inquire into the
subject; and if they had not turned their attention to it, the attorney
for the district would be pleased to examine a file of that paper, and
if he found any thing that came within the sedition law, would lay it
before them. This is the substance of what the respondent said to the
grand jury on that occasion, and, he believes, nearly his words; on the
morning of the _next day_ they came into court and declared that they had
no presentments or indictments to make, on which they were immediately
discharged. The whole time, therefore, for which they were detained, was
twenty-four hours, far less than is generally required of grand juries.
And for plea to the said seventh article of impeachment, the said Samuel
Chase saith, that he is not guilty of any high crime or misdemeanor, as
in and by the said seventh article is alleged against him, and this he
prays may be inquired of by this honorable Court, in such manner as law
and justice shall seem to them to require.
The eighth article of impeachment charges that this respondent,
“disregarding the duties and dignity of his official character, did,
at a circuit court for the district of Maryland, held at Baltimore, in
the month of May, 1803, pervert his official right and duty to address
the grand jury then and there assembled, on the matters coming within
the province of the said jury, for the purpose of delivering to the
said grand jury an intemperate and inflammatory political harangue,
with intent to excite the fears and resentment of the said grand jury,
and of the good people of Maryland, against their State government
and constitution,” and also that this respondent, “under pretence of
exercising his judicial right to address the grand jury as aforesaid,
did endeavor to excite the odium of the said grand jury, and of the good
people of Maryland, against the Government of the United States, by
delivering opinions which were, at that time and as delivered by him,
highly indecent, extra-judicial, and tending to prostitute the high
judicial character with which he was invested to the low purpose of an
electioneering partisan.”
In answer to this charge this respondent admits that he did, as one
of the Associate Justices of the Supreme Court of the United States,
preside in a circuit court held at Baltimore in and for the district of
Maryland, in May, 1803, and did then deliver a charge to the grand jury,
and express in the conclusion of it some opinions as to certain public
measures, both of the Government of Maryland and of that of the United
States. But he denies that, in thus acting, he disregarded the duties and
dignity of his judicial character, perverted his official right and duty
to address the grand jury, or had any intention to excite the fears or
resentment of any person whatever against the Government and Constitution
of the United States or of Maryland. He denies that the sentiments
which he thus expressed were “intemperate and inflammatory,” either in
themselves or in the manner of delivering; that he did endeavor to excite
the odium of any person whatever against the Government of the United
States, or did deliver any opinions which were in any respect indecent,
or which had any tendency to prostitute his judicial character to any low
or improper purpose. He denies that he did any thing that was unusual,
improper, or unbecoming in a judge, or expressed any opinions, but such
as a friend to his country and a firm supporter of the Governments, both
of the State of Maryland and of the United States, might entertain. For
the truth of what he here says, he appeals confidently to the charge
itself: which was read from a written paper now in his possession ready
to be produced. A true copy of all such parts of this paper as relate
to the subject matter of this article of impeachment, is contained in
the exhibit marked No. 8, which he prays leave to make part of this his
answer.
Admitting these opinions to have been incorrect and unfounded, this
respondent denies that there was any law which forbids him to express
them in a charge to a grand jury, and he contends that there can be no
offence without the breach of some law. The very essence of despotism
consists in punishing acts which, at the time when they were done, were
forbidden by no law. Admitting the expression of political opinions by
a judge, in his charge to a grand jury, to be improper and dangerous,
there are many improper and very dangerous acts, which not being
forbidden by law, cannot be punished. Hence the necessity of new penal
laws, which are from time to time enacted for the prevention of acts not
before forbidden, but found by experience to be of dangerous tendency.
It has been the practice in this country, ever since the beginning of
the Revolution which separated us from Great Britain, for the judges
to express from the bench, by way of charge to the grand jury, and to
enforce to the utmost of their ability such political opinions as they
thought correct and useful. There have been instances in which the
Legislative bodies of this country have recommended this practice to the
judges; and it was adopted by the judges of the Supreme Court of the
United States as soon as the present Judicial system was established.
Nor can the incorrectness of the political opinions thus expressed have
any influence in deciding on the guilt or innocence of a judge’s conduct
in expressing them. For if he should be considered as guilty or innocent,
according to the supposed correctness or incorrectness of the opinion
thus expressed by him, it would follow that error in political opinion,
however honestly entertained, might be a crime; and that a party in
power might, under this pretext, destroy any judge who might happen, in
a charge to a grand jury, to say something capable of being construed by
them into a political opinion adverse to their own system.
And the said Samuel Chase, for plea to the said eighth article of
impeachment, saith, that he is not guilty of any high crime and
misdemeanor, as in and by the said eighth article is alleged against him,
and this he prays may be inquired of by this honorable Court, in such
manner as law and justice shall seem to them to require.
This respondent has now laid before this honorable Court, as well as the
time allowed him would permit, all the circumstances of the case, with an
humble trust in Providence, and a consciousness that he has discharged
all his _official_ duties with justice and impartiality, to the best of
his knowledge and abilities; and that intentionally he hath committed no
crime or misdemeanor, or any violation of the constitution or laws of
his country. Confiding in the impartiality, independence, and integrity
of his judges, and that they will patiently hear, and conscientiously
determine this case, without being influenced by the spirit of party, by
popular prejudice, or political motives, he cheerfully submits himself to
their decision.
He is satisfied that every member of this tribunal will observe the
principles of humanity and justice, and will presume him innocent until
his guilt shall be established by legal and creditable witnesses, and
will be governed in his decision by the moral and Christian rule of
rendering that justice to this respondent which he would wish to receive.
This respondent now stands not merely before an earthly tribunal, but
also before that awful Being whose presence fills all space, and whose
all-seeing eye more especially surveys the temples of justice and
religion. In a little time, his accusers, his judges, and himself, must
appear at the bar of Omnipotence, where the secrets of all hearts shall
be disclosed, and every human being shall answer for his deeds done in
the body, and shall be compelled to give evidence against himself, in the
presence of an assembled universe. To his Omnipotent Judge, at that awful
hour, he now appeals for the rectitude and purity of his conduct, as to
all the matters of which he is this day accused.
Mr. RANDOLPH, on behalf of the Managers, requested time to consult the
House of Representatives, and likewise to be furnished with a copy of the
answer of Judge Chase, for the purpose of making a replication to it.
The PRESIDENT said the Senate would take the request into consideration,
and make known to the House of Representatives such order as should be
taken thereon.
Whereupon the Senate, at the suggestion of the PRESIDENT, retired to
their legislative apartment.
On Wednesday, the 6th instant, the House of Representatives received
a copy of the foregoing answer, which was referred to the Managers.
On the same day, Mr. RANDOLPH reported a replication to the answer,
which was immediately taken into consideration. Several motions were
made and rejected, after a short debate, to soften the style; when the
replication, as reported, was adopted--yeas 77, nays 34. Whereupon, it
was resolved that the Managers be instructed to proceed to maintain the
said replication at the bar of the Senate, at such time as shall be
appointed by the Senate.
THURSDAY, February 7.
The Court was opened about two o’clock.
_Present_: The Managers, and Mr. HOPKINSON, of the counsel for Mr. Chase.
Mr. RANDOLPH, on behalf of the Managers, read the replication of the
House of Representatives, to the answer of Samuel Chase, as follows:
Replication by the House of Representatives of the United
States, to the answer of Samuel Chase, one of the Associate
Justices of the Supreme Court of the United States, to the
Articles of Impeachment exhibited against him by the said House
of Representatives.
The House of Representatives of the United States have
considered the answer of Samuel Chase, one of the Associate
Justices of the Supreme Court of the United States, to the
Articles of Impeachment against him, by them exhibited, in the
name of themselves and of all the people of the United States,
and observe,
That the said Samuel Chase hath endeavored to cover the
high crimes and misdemeanors laid to his charge, by evasive
insinuations and misrepresentation of facts; that the said
answer does give a gloss and coloring utterly false and untrue,
to the various criminal matters contained in the said Articles;
that the said Samuel Chase did, in fact, commit the numerous
acts of oppression, persecution, and injustice, of which he
stands accused; and the House of Representatives, in full
confidence of the truth and justice of their accusation, and
of the necessity of bringing the said Samuel Chase to a speedy
and exemplary punishment, and not doubting that the Senate will
use all becoming diligence to do justice to the proceedings
of the House of Representatives, and to vindicate the honor
of the nation, do aver their charge against the said Samuel
Chase to be true, and that the said Samuel Chase is guilty
in such manner as he stands impeached; and that the House of
Representatives will be ready to prove their charges against
him, at such convenient time and place as shall be appointed
for that purpose.
Signed by order, and in behalf of, the said House.
NATH. MACON, _Speaker_,
Attest:
JOHN BECKLEY, _Clerk_.
Mr. HOPKINSON requested a copy of the replication, which, the PRESIDENT
replied, would be furnished by the Secretary.
Mr. BRECKENRIDGE moved a resolution to the following effect:
That the Secretary be directed to inform the House of Representatives
that the Senate will, to-morrow, at twelve o’clock, proceed with the
trial of Samuel Chase; which was agreed to without one dissenting voice,
34 members voting for it.
Whereupon, the Senate withdrew to their legislative apartment.
FRIDAY, February 8.
The Court opened precisely at twelve o’clock.
_Present_: The Managers, and the House of Representatives, in Committee
of the Whole; and Mr. Chase, attended by his counsel, Messrs. MARTIN,
HARPER, HOPKINSON, and KEY.
The crier having, agreeably to a prescribed form, notified all those
concerned to come forward and make good the charges exhibited against
Samuel Chase,
Mr. RANDOLPH, the leading Manager, requested that the witnesses on the
part of the prosecution might be called, to ascertain who were present.
They were accordingly called, to the number of twenty-four.
_Present_: Alexander James Dallas, William Lewis, William Rawle, William
S. Biddle, Edward Tilghman, George Reed, John Montgomery, John Stephen,
John Thompson Mason, Samuel H. Smith, John Taylor, George Hay, William
Wirt, and John Heath.
_Absent_: James Lea, John Crow, Risdon Bishop, Aquila Hall, Philip
Stewart, Thomas Hall, Philip N. Nicholas, John Harvie, Meriwether Jones,
and James Pleasants.
Mr. RANDOLPH observed that various considerations, which it was
unnecessary to detail, induced him, on behalf of the Managers, to move a
postponement of the trial till to-morrow, when they hoped to be prepared
to proceed with it.
Mr. HARPER said that, on behalf of Judge Chase, he would not object to
the motion.
The PRESIDENT informed the Managers that the Senate acceded to their
request, and added, that the Senate would attend to-morrow at twelve
o’clock, for the purpose of proceeding with the trial.
At the request of Mr. HARPER, the witnesses on the part of Judge Chase
were called over, to the number of forty.
_Present_: John A. Chevalier, David M. Randolph, John Marshall, John
Basset, Samuel P. Moore, William C. Frazier, David Robertson, Edward
Tilghman, Wm. Meredith, Jared Ingersoll, Samuel Ewing, James Winchester,
Walter Dorsey, James P. Boyd, Nicholas Brice, John Purviance, William M.
Mechin, Thomas Chase, William H. Winder, William Gwynn, William Rawle,
William J. Govane, Gunning Bedford, Nicholas Vandyke, John Hall, jun.,
Archibald Hamilton, and Thomas Carpenter.
_Absent_: William Marshall, Edmund Randolph, Robert Gamble, Philip Moore,
Cornelius Comegys, John Stewart, and Edward J. Coale.
_Not found_: John Hopkins, Philip Gooch, William Minor, and Samuel
Wheeler.
_Sick_: Cyrus Griffin. _Dead_: J. C. Barrett.
Whereupon the Court rose.
SATURDAY, February 9.
The Court was opened precisely at 12 o’clock.
_Present_: The Managers, attended by the House of Representatives in
Committee of the Whole; and Judge Chase, attended by his counsel, as
mentioned in the proceedings of yesterday.
At a quarter after 12 o’clock, Mr. RANDOLPH, on behalf of the Managers,
opened the impeachment, as follows:
Mr. President: It becomes my duty to open this cause on behalf of the
prosecution. From this duty, however incompetent I feel myself to its
performance at all times, and more especially at this time, as well from
the very short period which has been allowed us to consider the long
and elaborate plea of the respondent, as from the severe pressure of
disease, it does not become me to shrink. The station in which I have
been placed calls for the discharge of an important public trust at my
hands. It shall be performed to the best of my ability, inadequate as I
know that ability to be. When I speak of the short period which has been
allowed us, I hope not to be understood as expressing, on our part, any
dissatisfaction at the course which has been pursued, or any wish to
prolong the time which has been allotted for trial. We are sensible of a
disposition in this honorable Court to grant us every indulgence which we
ought to ask, and when their attention is called to the precipitate hurry
of our preparation, it is only to offer, on behalf of an individual,
perhaps a weak apology for the weak defence which he is about to make of
the cause confided to his care. A desire for the furtherance of justice
and the avoidance of delay, but, above all, an unshaken conviction that
we stand on impregnable ground, induce us on this short notice to declare
that we are ready to substantiate our accusation, to prove that the
respondent is guilty in such manner as he stands impeached.
It is a painful but indispensable task which we are called upon to
perform: to establish the guilt of a great officer of Government, of a
man, who, if he had made a just use of those faculties which God and
nature bestowed upon him, would have been the ornament and benefactor
of his country, would have rendered her services as eminent and useful
as he has inflicted upon her outrages and wrongs deep and deadly. A
character endowed by nature with some of her best attributes, cultivated
by education, placed by his country in a conspicuous station, invested
with authority whose righteous exercise would have rendered him a terror
to the wicked, whilst it endeared him to the wise and good: such a
character, presented to the nation in the light in which he now stands,
and in which his misdeeds have made it our duty to bring him forward,
forms one of the saddest spectacles which can be offered to the public
eye. Base is that heart which could triumph over him.
I will now proceed to state the principal points on which we mean to
rely, and which we expect to establish by the clearest evidence. In doing
this I shall be necessarily led to notice many of the leading statements
of the respondent’s answer. We will begin with the first article. [Here
Mr. R. read that article.] The answer to the first of these charges is
by evasive insinuation and misrepresentation, by an attempt to wrest the
accusation from its true bearing, the manner and time of delivering the
opinion, and the intent with which it was delivered, to the correctness
of the opinion itself, which is not the point in issue. And here permit
me to remark, that if the Managers of this impeachment were governed only
by their own conviction of the course which they ought, necessarily, to
pursue, and not by the high sense of duty which they owe to their eminent
employers, they would have felt themselves justified in resting their
accusation on the admissions of the respondent himself. It is not for
the opinion itself, that the respondent is impeached; it is for a daring
inroad upon the criminal jurisprudence of his country, by delivering
that opinion at a time and in a manner (in writing) before unknown and
unheard of. The criminal intent is to be inferred from the boldness of
the innovation itself, as well as from other overt acts charged in this
article. The admission of the respondent ought to secure his conviction
on this charge. He acknowledges he did deliver an opinion, _in writing_,
on the question of law, (which it was the right and duty of the jury
to determine, as well as the fact,) _before_ counsel had been heard
in defence of John Fries, the prisoner. I must beg the assistance of
one of the gentlemen with whom I am associated, to read this part
of the answer. [Mr. Clark accordingly read the reply of Mr. Chase to
this charge.] We charge the respondent with a gross departure from the
forms, and a flagrant outrage upon the substance of criminal justice,
in delivering a written, prejudicated opinion on the case of Fries,
tending to bias the minds of the jury against him before counsel had been
heard in his defence. The respondent (page 33, of the answer) admits
the fact, for he knew that we are prepared to prove it. But he artfully
endeavors to shift the argument from the real point in contest, to the
soundness of the opinion itself, which, however questionable, (and of
its incorrectness I entertain no doubt,) it is not our object at this
time to examine. For the truth of this opinion and, as it would seem,
for the propriety of this proceeding, the respondent takes shelter under
precedent. He tells you, sir, this doctrine had been repeatedly decided
on solemn argument and deliberation, twice in the same court, and once
in that very case. What is this, but a confession, that he himself hath
been the first man to venture on so daring an innovation on the forms
of our criminal jurisprudence? To justify himself for having given a
written opinion _before_ counsel had been heard for the prisoner, he
resorts to the example set by his predecessors, who had delivered the
customary verbal opinion, after solemn arguments and deliberation. And
what do these repeated arguments and solemn deliberations prove, but
that none of his predecessors ever arrogated to themselves the monstrous
privilege of breaking in upon those sacred institutions, which guard
the life and liberty of the citizen from the rude inroads of powerful
injustice? The learned and eminent judges, to whose example he appeals,
for justification, decided _after_, and not _before_ a hearing. They
exercised the acknowledged privilege of the bench in giving an opinion
to the jury on the question of law, after it had been fully argued by
counsel on both sides. They never attempted, by previous and written
decisions, to wrest from the jury their undeniable right of deciding
upon the law as well as the fact, necessarily involved in a general
verdict, to usurp the decision to themselves, or to prejudice the minds
of the jurors against the defence. I beg this honorable Court never
to lose sight of the circumstance, that this was a _criminal_ trial,
for a _capital_ offence, and that the offence charged was _treason_.
The respondent also admits, that the counsel for Fries, not meaning to
contest the truth of the facts charged in the indictment, rested their
defence altogether upon the law, which he declared to have been settled
in the cases of Vigol and Mitchell: a decision which, although it might
be binding on the Court, the jury were not obliged to respect, and which
the counsel had a right to controvert before them, the sole judges, in
a case of that nature, both of the _law_ and _fact_. I do not deny the
right of the Court to explain their sense of the law to the jury, after
counsel have been heard; but I do deny that the jury are bound by such
exposition. If they verily believe that the overt acts charged in the
indictment did not amount to treason, they could not without a surrender
of their consciences into the hands of the Court, without a flagrant
violation of all that is dear and sacred to man, bring in a verdict of
guilty. I repeat that in such a case the jury are not only the sole
judges of the law, but that where their verdict is favorable to the
prisoner, they are the judges without appeal. In civil cases, indeed,
the verdict may be set aside and a new trial granted; but in a criminal
prosecution, the verdict, if not guilty, is final and conclusive. It is
only when the finding of the jury is unfavorable to the prisoner, that
the humane provisions of our law, always jealous of oppression when the
life or liberty of the citizen is at stake, permits the verdict to be set
aside, and a new trial granted to the unhappy culprit. When I concede
the right of the Court to explain the law to the jury in a criminal,
and especially in a capital case, I am penetrated with a conviction
that it ought to be done, if at all, with great caution and delicacy. I
must beg leave to take, before this honorable Court, what appears, to
my unlettered judgment, to be a strong and obvious distinction. There
is, in my mind, a material difference between a naked definition of
law, the application of which is left to the jury, and the application
by the Court of such definition to the particular case upon which the
jury are called upon to find a general verdict. Surely, there is a wide
and evident distinction between an abstract opinion upon a point of
law, and an opinion applied to the facts admitted by the party accused,
or proven against him. But it is alleged, on behalf of the respondent,
that the law in this case was settled, and upon this he rests his
defence. Will it be pretended by any man that the law of treason is
better established than the law of murder? What is treason, as defined
by the constitution? Levying war against the United States, or adhering
to their enemies, giving them aid and comfort. What is murder? Killing
with malice aforethought, a definition at least as simple and plain as
the other. And because what constitutes murder has been established and
settled through a long succession of ages and adjudications, has any
judge, for that reason, been ever daring enough to assert that counsel
should be precluded from endeavoring to convince the jury that the overt
acts, charged in the indictment, did not amount to murder? Is a Court
authorized to say, that, because killing with a deliberate malice is
murder, therefore the act of killing, admitted by the prisoner’s counsel,
or established by evidence, was a killing with malice prepense, and did
constitute murder? I venture to say that an instance cannot be adduced,
familiar as the definition of murder is even to the most ignorant,
numerous as have been the convictions for that atrocious crime, where
counsel have been deprived of their unquestionable right to address
the jury on the law, as well as on the fact. Much less can an instance
be produced, in any trial for a capital offence, where they have found
themselves anticipated in the question of law by a written opinion, to be
taken by the jury out of court, as the landmark by which their verdict is
to be directed. I have always understood, that even in a civil case, when
the jury carried out with them a written paper, relating to the matter in
issue, and which was not offered, or permitted to be given in evidence
to them, it was sufficient to vitiate their verdict, and good ground for
a new trial. This written opinion of the Court, delivered previous to a
hearing of the cause, is a novelty to our laws and usages. It would be
reprehensible in any case, but in a criminal prosecution, for a capital
offence, and that offence treason, (where, above all, oppression and
arbitrary proceedings on the part of courts are most to be dreaded and
guarded against,) it cannot be too strongly reprobated or too severely
punished.
What would be said of a judge who in a trial for murder, where the facts
were admitted (or proved) should declare from the bench, that whatever
argument counsel had to offer, in relation to the facts, may be addressed
to the jury, but that they should not attempt to convince the jury that
such facts came not within the law, did not amount to murder, but that
every thing which they had to say upon the question of law, should
be addressed to the Court, and to the Court only. Can you figure to
yourselves a spectacle more horrible?
We are prepared to prove, what the respondent has in part admitted, that
he “restricted the counsel of Fries from citing such English authorities
as they believed apposite, and certain statutes of the United States
which they deemed material to their defence:” that the prisoner was
debarred by him from his constitutional privilege of addressing the jury,
through his counsel, on the law, as well as the fact involved in the
verdict which they were required to give, and that he attempted to wrest
from the jury their undeniable right to hear argument, and, consequently,
to determine upon the question of law which in a criminal case it was
their sole and unquestionable province to decide. These last charges
(except as far as relates to the laws of the United States) are impliedly
admitted by the respondent. He confesses that he would not admit the
prisoner’s counsel to cite certain cases, “because they could not inform
but might deceive and mislead the jury.” Mr. President, it is the noblest
trait in this inestimable trial, that in criminal prosecutions, where
the verdict is general, the jury are the sole judges, and, where they
acquit the prisoner, the judges, without appeal, both of law and fact.
And what is the declaration of the respondent but an admission that
he wished to take from the jury their indisputable privilege to hear
argument and determine upon the law, and to usurp to himself that power
which belongs to them, and to them only? It is one of the most glorious
attributes of jury trial, that in criminal cases (particularly such as
are capital) the prisoner’s counsel may (and they often do) attempt “to
deceive and mislead the jury.” It is essential to the fairness of the
trial, that it should be conducted with perfect freedom. It is congenial
to the generous spirit of our institutions to lean to the side of an
unhappy fellow-creature, put in jeopardy of limb, or life, or liberty.
The free principles of our Governments, individual and federal, teach
us to make every humane allowance in his favor, to grant him, with a
liberality unknown to the narrow and tyrannous maxims of most nations,
every indulgence not inconsistent with the due administration of justice.
Hence, a greater latitude is permitted to the prosecutor. The jury, upon
whose verdict the event is staked, are presumed to be men capable of
understanding what they are called upon to decide, and the Attorney for
the State a gentleman learned in his profession, capable of detecting and
exposing the attempts of the opposite counsel to mislead and deceive.
There is, moreover, the Court, to which, in cases of difficulty, recourse
might be had. But what, indeed, is the difficulty arising from the law
in criminal cases, for the most part? What is to hinder an honest jury
from deciding, especially after the aid of an able discussion, whether
such an act was killing with malice prepense, or such other overt acts
set forth in an indictment, constituted a levying war against the United
States; and to what purpose has treason been defined by the constitution
itself, if overbearing, arbitrary judges are permitted to establish among
us the odious and dangerous doctrine of constructive treason? The acts of
Congress which had been referred to on the former trial, but which the
respondent said he would not suffer to be cited again, tended to show
that the offence committed by Fries did not amount to treason; that it
was a misdemeanor only, already provided for by law, and punishable with
fine and imprisonment. The respondent indeed denies this part of the
charge, but he justifies it even (as he says) if it be proved upon him.
And are the laws of our own country (as well as foreign authorities) not
to be suffered to be read in our courts, in justification of a man whose
life is put in jeopardy?
I now proceed to the second article--the case of Basset, whose
objection to serve on Callender’s jury was overruled by the judge who
stands arraigned before this honorable Court. In the 30th page of the
respondent’s answer it is stated, that a new trial was granted to Fries,
“upon the ground (as this respondent understood and believes) that one
of the jurors, after he was summoned, but before he was sworn, had made
some declaration unfavorable to the prisoner.” It will be remembered that
both the trials of Fries preceded that of Callender. Upon what principle,
then, could the respondent declare Basset a good juryman, when he was
apprised of the previous decision in the case of Fries, by his brother
judge, whom he professes to hold in such high reverence, and by whose
decision, on his own principles, he must have held himself bound. For
surely the same exception to a juryman which would furnish ground for
a new trial, ought to be a cause of setting aside such juror, if it be
taken previous to his being sworn.
From the respondent’s own showing it appears, that the question put to
the jurymen generally, and to Basset among others, was, whether they “had
formed _and_ delivered any opinion upon the subject-matter then to be
tried, or concerning the charges contained in the indictment.” And here
let me refer the Court to the question which the respondent put to the
jurors in the case of Fries. It was, “whether they had ever formed _or_
delivered any opinion as to his guilt, or innocence, or that he ought to
be punished?” How is this departure from the respondent’s own practice,
this inconsistency with himself, to be reconciled? In the one case the
question is put in the disjunctive; “have you formed _or_ delivered?” In
the other, it is in the conjunctive, “formed _and_ delivered;” besides
other material difference in the terms and import of the two questions.
Wherefore, I repeat, this contradiction of himself? But, Mr. President,
we shall be prepared to prove that the words “_subject-matter then to be
tried_,” were not comprised in the question propounded to Basset, or to
any of the other jurors. The question was, as will be shown in evidence,
“have you ever formed _and_ delivered any opinion _concerning the charges
contained in the indictment_?” And it is remarkable that the whole
argument of the respondent upon this point goes to justify the question
which was _actually_ put, and which he probably expected we should
prove that he did put, rather than that which he himself declares to
have been propounded by him. Such a question must necessarily have been
answered in the negative. Basset could never have seen the indictment:
and although his mind might have been made up on the _book_, whatever
opinion he might have formed and delivered as to the guilt of Callender,
or however desirous he might have been of procuring his conviction and
punishment, still, not having seen the indictment, he could not divine
what passages of the book were made the subject of charges, and, by the
criterion established by the judge, he was a good juror. But if the
juror’s mind was thus prejudiced against the book and the writer, was he,
merely because he had not seen the indictment, competent to pass between
him and his country on the charges contained in it, and extracted out
of the book? And even if the question had been such as the respondent
states, yet being put in the conjunctive, the most inveterate foe of the
traverser who was artful, or cautious enough to forbear the expression of
his enmity, would thereby have been admitted as competent to pass between
the traverser and his country in a criminal prosecution.
The third article relates to the rejection of John Taylor’s testimony.
This fact also is admitted, and an attempt is made to justify it, on
the ground of its “_irrelevancy_” on the pretext that the witness
could not prove the whole of a particular charge. By recurring to “The
Prospect before Us,” a book, which, with all its celebrity, I never saw
till yesterday, I find this charge consists of two distinct sentences.
Taken separately the respondent asserts that they mean nothing; taken
together, a great deal. And because the respondent undertook to determine
(without any authority as far as I can learn) that Colonel Taylor could
not prove the whole, that is both sentences, he rejected his evidence
entirely, for “_irrelevancy_.” Might not his testimony have been relevant
to that of some other witness, on the same, or on another charge? I
appeal to the learning and good sense of this honorable Court, whether
it is not an unheard of practice (until the present instance) in a
criminal prosecution, to declare testimony inadmissible because it is not
expected to go to the entire exculpation of the prisoner? Does it not
daily occur in our courts, that a party accused, making out a part of
his defence by one witness and establishing other facts by the evidence
of other persons; does it not daily occur that the testimony of various
witnesses sometimes to the same, and sometimes to different facts, does
so _relieve_ and support the whole case, as to leave no doubt of the
innocence or guilt of the accused, in the minds of the jury, who, it must
never be forgotten, are, in such cases, the sole judges both of the law
and the fact? Suppose, for instance, that the testimony of two witnesses
would establish all the facts, but that each of those facts are not known
by either of them. According to this doctrine the evidence of both might
be declared inadmissible, and a man whose innocence, if the testimony in
his favor were not rejected, might be clearly proved to the satisfaction
of the jury, may thus be subjected by the verdict of that very jury to
an ignominious death. Shall principles so palpably cruel and unjust be
tolerated in this free country? I am free to declare that the decision of
Mr. Chase, in rejecting Colonel Taylor’s testimony, was contrary to the
known and established rules of evidence, and this I trust will be shown
by my learned associates, to the full satisfaction of this honorable
Court, if indeed they can require further satisfaction on a point so
clear and indisputable. But this honorable Court will be astonished when
they are told (and the declaration will be supported by undeniable proof)
that at this very time neither the traverser, his counsel, nor the Court,
knew the extent to which Colonel Taylor’s evidence would go. They were
apprised, indeed, that he would show that Mr. Adams was an aristocrat,
and that he had proved serviceable to the British interest, in the
sense conveyed by the book; but they little dreamed that his evidence,
if permitted to have been given in, would have thrown great light upon
many other of the charges. There is one ground of defence taken by the
respondent, which, I did suppose, a gentleman of his discernment would
have sedulously avoided: that although the traverser had justified
nineteen out of twenty of the charges contained in the indictment, if he
could not prove the truth of the twentieth, it was of little moment, as
he was, “thereby, put into the power of the Court.” Gracious God! sir,
what inference is to be drawn from this horrible insinuation?
In justification of the charges contained in the fourth article, the
respondent, unable to deny the fact, confesses that he did require “the
questions intended to be put to the witness to be reduced to writing,
and submitted to the Court,” in the first instance, as we shall prove,
and before they had been verbally propounded. And this requisition, he
contends, it was “the right and duty of the Court” to make. It would not
become me, elsewhere, or on any other occasion, to dispute the authority
of the respondent, on legal questions, but I do aver that such is _not_
the _law_, at least in the State in which that trial was held, nor do
I believe that it is law any where. I speak of the United States. Sir,
in the famous case of Logwood, whereat the Chief Justice of the United
States presided, I was present, being one of the grand jury who found a
true bill against him. It must be conceded that the Government was as
deeply interested in arresting the career of this dangerous and atrocious
criminal, who had aimed his blow against the property of every man in
society, as it could be in bringing to punishment a weak and worthless
scribbler. And yet, although much testimony was offered by the prisoner,
which did by no means go to his entire exculpation; although much of that
testimony was of a very questionable nature, none of it was declared
_inadmissible_; it was suffered to go to the jury, who were left to
judge of its weight and credibility; nor were any interrogatories to the
witnesses required to be reduced to writing. And I will go farther, and
say that it never has been done before or since Callender’s trial, in
any court of Virginia, and I believe I might add in the United States,
whether State or Federal. No, sir, the enlightened man who presided in
Logwood’s case knew that, although the basest and vilest of criminals,
he was entitled to _justice_, equally with the most honorable member of
society. He did not avail himself of the previous and great discoveries,
in criminal law, of this respondent; he admitted the prisoner’s testimony
to go to the jury; he never thought it _his right_ or _his duty_ to
require questions to be reduced to writing; he gave the accused a _fair
trial_, according to law and usage, without any innovation or departure
from the established rules of criminal jurisprudence in this country.
The respondent also acknowledges his refusal to postpone the trial
of Callender, although an affidavit was regularly filed, stating the
absence of material witnesses on his behalf; and here again the ground
of his defence is, in my estimation, good cause for his conviction. The
dispersed situation of the witnesses, which he alleges to have been the
motive of his refusal, is, to my mind, one of the most unanswerable
reasons for granting a postponement. The other three charges contained
in this article will be supported by unquestionable evidence: the rude
and contemptuous expressions of the judge to the prisoner’s counsel; his
repeated and vexatious interruptions of them; his indecent solicitude
and predetermined resolution to effect the conviction of the accused.
This predetermination we shall prove to have been expressed by him long
before, as well as on his journey to Richmond, and whilst the prosecution
was pending; besides the proofs which the trial itself afforded.
The fifth article is for the respondent’s having “awarded a capias
against the body of James Thompson Callender, indicted for an offence
not capital, whereupon the said Callender was arrested and committed to
close custody, contrary to law in such case made and provided:” that is,
contrary to the act of Assembly of Virginia, recognized (by the act of
Congress passed in 1789, for the establishment of the judicial courts
of the United States) as the rule of decision in the federal courts, to
be held in that State, until other provision be made. The defence of
the respondent embraces several points: That the act of Virginia was
passed posterior to the act of Congress, viz: in 1792, and could not be
intended by the latter to be a rule of decision. Fortunately, there is no
necessity to question, which we might well do, the truth of his position.
It may be necessary to inform some of the members of this honorable
Court, that, about twelve or thirteen years ago, the laws of Virginia
underwent a revision; all those relating to a particular subject being
condensed into one, and the whole code thereby rendered less cumbrous and
perplexed. Hence, many of our laws, to a casual and superficial observer,
would appear to take their date so late as the year 1792, although their
provisions were, long before, in force. The twenty-eighth section of this
very act, on which we rely, the Court will perceive to have been enacted
in 1788, one year _preceding_ the act of Congress. (Virg. laws, chap.
74, sec. 28, page 106, note b. Pleasants’ edition.) [Here Mr. Randolph
read the act referred to.] “Upon presentment made by a grand jury of an
offence not capital, the Court shall order the clerk to issue a summons,
or other proper process, against the person so presented, to appear and
answer such presentment at the next court,” &c. But the respondent,
aware, no doubt, of this fact, asserts that the act not being adduced,
he was not bound to know of its existence, and that he ought not to be
censured for the omissions of the traverser’s counsel, whose duty it was
to have cited it on behalf of their client; and this objection, with the
preceding ones, which I have endeavored to answer, will equally apply
to the sixth article. Sir, when the counsel for the traverser were told
by the judge at the outset, when they referred to a provision of this
very law, “that such may be your local State laws here in Virginia, but
that to suppose them as applying to the courts of the United States, is
a _wild notion_,” would it not, indeed, have been a _wild experiment_ in
them to cite the same law with a view of influencing the opinion of a
man, who had scornfully scouted the idea that he was to be governed by it?
Unwilling, however, to rest himself now on the ground which he then took,
the respondent justifies himself by declaring that he complied, although
ignorantly, with this law, by issuing that _other proper process_, of
which it speaks, that is, a capias. But that other process must be of the
nature of a summons, notifying the party to appear at the _next term_;
and will any man pretend to say, that a capias taking him into close
custody and obliging him to appear, not at the next, but at the existing
term, is such process as that law describes? Sir, not only the law, but
the uniform practice under it, as we are prepared to show by evidence,
declares the capias not to be the proper process. But it is said that
this would be nothing more than notice to the party accused to abscond,
and therefore _ought not_ to be law. Sir, we are not talking about what
ought to have been the law; that is no concern of ours; the question is,
what _was_ the law? But the impolicy of this mode of proceeding is far
from being ascertained. It is a relief to the innocent who may be in a
state of accusation. It saves the expense of imprisoning the guilty,
and if they should prefer voluntary exile to standing a trial, is it so
very clear that the State is thereby more injured than by holding them
to punishment, after which they would remain in her bosom to perpetrate
new offences? Remember, this proceeding is against petty offenders, not
felons. It does not apply to capital cases; to felonies, then capital,
for which our law has since commuted the punishment of death, into that
of imprisonment at hard labor.
For further defence against the sixth article, the respondent takes
shelter under this position: That the provision of the law of the United
States establishing the judicial courts relates only to rights acquired
under _State_ laws, which come into question on the trial, and not to
forms of process _before_ the trial, and can have no application to
offences created by statute, which cannot, with propriety, be termed
trials at “_common law_.” We are prepared to show that the words “trials
at common law,” are used in that statute, not in their most restricted
sense, but to contradistinguish a certain description of cases from those
arising in equity, or under maritime or civil law.
I will pass over the seventh article of impeachment, as well because I am
nearly exhausted, as being content to leave it on the ground where the
respondent himself has placed it. It would be impossible for us to put
it in a stronger light than has been thrown upon it by his own admission.
The eighth and last article remains to be considered--[article read.]
I ask this honorable Court whether the prostitution of the bench of
justice, to the purposes of an hustings, is to be tolerated? We have
nothing to do with the politics of the _man_. Let him speak, and write,
and publish, as he pleases. This is his right in common with his
fellow-citizens. The press is free. If he must electioneer and abuse
the government under which he lives, I know no law to prevent or punish
him, provided he seeks the wonted theatres for his exhibition. But shall
a judge declaim on these topics from his seat of office? Shall he not
put off the political partisan when he ascends the tribune? or shall we
have the pure stream of public justice polluted with the venom of party
virulence? In short, does it follow that a judge carries all the rights
of a private citizen with him upon the bench, and that he may there
do every act which, as a freeman, he may do elsewhere, without being
questioned for his conduct?
But, sir, we are told that this high Court is not a court of errors and
appeals, but a court of impeachment, and that however incorrectly the
respondent may have conducted himself, proof must be adduced of criminal
intent, of wilful error, to constitute guilt. The _quo animo_ is to be
inferred from the facts themselves; there is no other mode by which, in
any case, it can be determined, and even the respondent admits that there
are acts of a nature so flagrant that guilt must be inferred from them,
if the party be of sound mind. But this concession is qualified by the
monstrous pretension that an act to be impeachable must be indictable.
Where? In the federal courts? There, not even robbery and murder are
indictable, except in a few places under our exclusive jurisdiction. It
is not an indictable offence under the laws of the United States for
a judge to go on the bench in a state of intoxication--it may not be
in all the State courts; and it is indictable nowhere for him to omit
to do his duty, to refuse to hold a court. But who can doubt that both
are impeachable offences, and ought to subject the offender to removal
from office? But in this long and disgusting catalogue of crimes and
misdemeanors, (which he has in a great measure confessed,) the respondent
tells you he had accomplices, and that what was guilt in him could not
be innocence in them. I must beg the Court to consider the facts alleged
against the respondent in all their accumulated atrocity; not to take
them, each in an insulated point of view, but as a chain of evidence
indissolubly linked together, and establishing the indisputable proof of
his guilt. Call to mind his high standing and character, and his superior
age and rank, and then ask yourselves whether he stands justified in a
long course of oppression and injustice, because men of weak intellect
and yet feebler temper--men of far inferior standing to the respondent,
have tamely acquiesced in such acts of violence and outrage? He is
charged with various acts of injustice, with a series of misconduct so
connected in time, and place, and circumstance, as to leave no doubt, on
my mind at least, of intentional ill. Can this be justified, because his
several associates have at several times and occasions barely yielded
a faint compliance, which perhaps they dared not withhold? Can they
be considered as equally culpable with him whose accumulated crimes
are to be divided amongst them, who had given at best but a negative
sanction to them? But, sir, would the establishment of their guilt prove
his innocence? At most, it would only prove that they too ought to be
punished. Wherever we behold the respondent sitting in judgment, there
do we behold violence and injustice. Before _him_ the counsel are always
contumacious. The most accomplished advocates of the different States,
whose demeanor to his brethren is uniformly conciliating and temperate,
are to _him_, and him only, obstinate, perverse, rude, and irritating.
Contumacy has been found to exist only where he presided.
I have endeavored, Mr. President, in a manner, I am sensible, very lame
and inadequate, to discharge the duty incumbent on me; to enumerate the
principal points upon which we shall rely, and to repel some of the
prominent objections advanced by the respondent. Whilst we confidently
expect his conviction, it is from the strength of our cause, and not from
any art or skill in conducting it. It requires so little support that
(thank Heaven) it cannot be injured by any weakness of mine. We shall
bring forward, in proof, such a specimen of judicial tyranny, as, I trust
in God, will never be again exhibited in our country.
The respondent hath closed his defence by an appeal to the great Searcher
of Hearts for the purity of his motives. For his sake, I rejoice that,
by the timely exercise of that mercy which, for wise purposes, has
been reposed in the Executive, this appeal is not drowned by the blood
of an innocent man crying aloud for vengeance; that the mute agony of
widowed despair, and the wailing voice of the orphan, do not plead to
Heaven for justice on the oppressor’s head. But for that intervention,
self-accusation before that dread tribunal would have been needless. On
that awful day the blood of a poor, ignorant, friendless, unlettered
German, murdered under the semblance and color of law, sent without pity
to the scaffold, would have risen in judgment at the Throne of Grace,
against the unhappy man arraigned at your bar. But the President of the
United States by a well-timed act, at once of justice and mercy, (and
mercy, like charity, covereth a multitude of sins,) wrested the victim
from his grasp, and saved him from the countless horrors of remorse, by
not suffering the pure ermine of justice to be dyed in the innocent blood
of John Fries.
The Managers proceeded to the examination of witnesses in support of the
prosecution.
_William Lewis, affirmed._
Mr. Dallas, Mr. W. Ewing, and I were counsel for John Fries, at his
request, and I believe by the assignment of the Court, on his trial in
the year 1799. It was conducted, I believe, in the usual manner, and we
were certainly allowed all the privileges that were customary on such
occasions. The trial was had before Judges Iredell and Peters. He was
convicted, and a new trial was ordered, because one of the jurors had
manifested a prejudice against the people in general concerned in the
insurrection, and against Fries in particular. This trial took place
partly in April and partly in May, 1799. At October session following,
Mr. Dallas and I attended at Norristown, expecting the trial would again
take place; but it did not. The proceedings on the first indictment were
quashed by the District Attorney, and a new bill was found at April
term, 1800, at which Judges Chase and Peters presided. Mr. Dallas and I
appeared again as the counsel of Fries, at his request, and I believe we
were assigned by the Court, but of this I am not certain. On the morning
of a certain day, which I do not now recollect, I entered the court room
when the judges were on the bench, and, if I recollect rightly, the
prisoner was in the bar; but if he was not then there, I feel very sure
that he soon was. The list of petit jurors was called over, and many of
them answered.
Almost immediately after the jurors were called over, Judge Chase began
to speak. At this time Mr. Dallas had not come into court. Judge Chase
said, he understood, or had been informed, that on the former trial or
trials, for it was impossible for me to know whether he alluded to the
case of Fries only, or of him and others, there had been a great waste
of time in making long speeches on topics which had nothing to do with
the business, and in reading common law cases on treason, as well as on
treason under the statute of Edward the Third, and also certain statutes
of the United States, respecting the resisting of process, and other
offences less than treason. He also said, that to prevent this in future,
he or they, I do not precisely recollect which, had considered the law,
had made up their minds, and had reduced their opinion to writing on the
subject, and would not suffer these cases to be read again; and in order
that the counsel (but whether for the prisoner, or the counsel on both
sides, I cannot say) might govern themselves conformably, he had ordered
three copies of that opinion to be made out, one to be delivered to the
prisoner’s counsel, one to the counsel in support of the prosecution,
and the other, as soon as the case was fully opened, or gone through, I
cannot say which, to be delivered by the clerk of the court to the jury.
I rather think that the expression was, fully gone through.
Judge Chase said, I think on the first day, that they were judges of
the law, and if they did not understand it they were unworthy of their
seats, or unfit to sit there, and that if the prisoner’s counsel had
any thing to say, to show that they had mistaken the law, or that they
were wrong, the counsel must address themselves to the Court for that
purpose, and not to the jury. I made some observations in answer, which
it is impossible for me in all respects particularly to recollect, as
having passed at this time, since some parts of it may perhaps have taken
place in other stages of the business. At this time Mr. Dallas was not
in court. I was struck with what appeared to me to be a great novelty
in the proceedings; and as I was extremely anxious to be of service to
Fries, I was desirous that Mr. Dallas might be present. I think I went
out of the bar to get somebody to go for him, and while I was out of the
bar, he entered the room. I briefly stated to him what had taken place,
or some parts of it; but I believe, not the whole. We came forward, and
we made some remarks, which I am unable to repeat. I was early struck
with the idea, that as the Court had made up their minds, and decided the
question of law, before the jury was sworn, or the witnesses or counsel
heard, it was not likely we should alter that opinion by any thing we
might say, and that we should probably render Fries more service by
withdrawing from his defence, than by engaging in it. We told him so, and
earnestly recommended to him to pursue that course. He appeared greatly
alarmed and extremely agitated, and much at a loss what determination
to come to. We, however, told him that, if he insisted on it, we would
proceed in his defence at every hazard, and contend for what we deemed
our constitutional rights as his counsel, until stopped by the Court; or
we used expressions to this effect. His state of alarm and apprehension
scarcely left him the power to decide for himself. After some time he
acquiesced in our advice; said he had nobody to depend on but us; that
he was sure we would do our best for him, and he would leave us to do
for him as we pleased. Being very anxious for him, we told him we would
call upon him at the jail, and satisfy his mind as to the course which we
wished him to pursue. He finally agreed to our proposal to withdraw; but
as we were apprehensive that the Court might assign him other counsel in
our place, and that our views might be defeated by such an arrangement,
we advised him against accepting any, and I understood that he afterwards
did refuse to accept of any other counsel. I will not assign my reasons
for giving this advice, as it might, perhaps, be improper, unless I am
directed by the Court.
Mr. Martin asked what those reasons were?
The President desired the examination to proceed on the part of the House
of Representatives, and said when that was closed, the witness might be
examined by the counsel for Judge Chase.
Mr. Lewis. It being thus determined that we should withdraw, and that
Fries should not accept any counsel that might be assigned him, I left
the court, expecting to have little or nothing more to say, as we were
no longer counsel for the prisoner. The next morning, soon after the
court was opened, and, I believe, when the prisoner was in the bar,
Judge Chase addressed Mr. Dallas and myself, and probably Mr. Rawle, and
asked us if we were ready to proceed? I answered that I was not, or that
we were not any longer counsel for the prisoner. He asked our reasons
for this; and I began to answer by mentioning what had taken place the
day before; on which he and Judge Peters certainly manifested a strong
disposition that we should proceed in the prisoner’s defence, and that
they would remove every restriction which had been previously imposed. I
was stopped in what I was about to say by Judge Chase telling us to go
on in our own way, and address the jury on the law as well as the facts,
as we thought proper; but, at the same time, he said it would be under
the direction of the Court; and at our own peril, or the risk of our
characters, if we conducted ourselves with impropriety. This had rather a
contrary effect on my mind than that of inducing me to proceed, as I did
not know that there had been any thing in my conduct so indecorous as to
make it necessary to remind me that, if I proceeded, it should be at my
own peril and risk of character; and this expression, therefore, rather
strengthened than lessened the determination which I had taken.
Finding that Mr. Dallas and I were determined not to proceed in the
prisoner’s defence, Judge Chase said, if we intended to embarrass the
Court we should find ourselves mistaken, as they would proceed without
us, and, by the blessing of God, render the prisoner as much justice
as if he had the aid of our counsel or assistance. Both the judges,
therefore, on the second day, even took pains to induce us to proceed in
the defence, with liberty to go through the whole question as well in
relation to the law as the facts; but we absolutely refused, believing
it not likely that any arguments we could urge would change the opinion
of the Court already formed, or destroy its effects, and also believing
that, after what had taken place, the life of Fries, even if he should
be convicted, would be exposed to less jeopardy without our aid than it
would be if we should engage in his defence.
_Alexander J. Dallas, sworn._
Mr. Dallas. I will endeavor to be correct in the statement which it is my
duty to give; and I am sure that I shall be substantially so, though I
cannot promise to place the facts precisely in the order of time in which
they occurred; nor to recite the very words that were used by the several
parties in the course of the transaction.
When the northern rioters were brought to Philadelphia, in the spring
of 1799, some of their friends applied to Mr. Ingersoll and to me to
undertake their defence. Mr. Ingersoll was then Attorney-General of
Pennsylvania; and on consideration, I believe, declined the task. Mr.
Lewis, either before or after this application, was also requested to
act as counsel for the prisoners; and upon his acquiescence, we repaired
to the prison to make the necessary arrangements preparatory to a trial.
Mr. William Ewing had been engaged by several of the rioters, and we
agreed to unite in the defence, as the same general facts in law applied
to all the cases.
In April term, 1799, the first trial of Fries took place. It was
conducted with great propriety throughout, by the Court, and by the
prosecuting officer; and the counsel of the prisoner were permitted to
address the jury at large, on the law and the facts, as well as to cite
every authority which they thought proper. Fries was convicted; but on
a motion made by Mr. Lewis and me, the verdict was set aside, and a new
trial awarded.
The second trial of Fries, upon a new indictment (the first having been
discontinued by Mr. Rawle) occurred in May, 1800. Mr. Lewis and I had
again, at his request, been assigned by the Court to defend him. On the
morning fixed for the trial, I entered the court room some time after
the court had been opened. Fries was standing in the prisoner’s box, the
jurors of the general panel appeared to be in the jury boxes, and the
hall was crowded with citizens. On my entrance, I perceived Mr. Lewis
and Mr. E. Tilghman engaged eagerly in conversation, and the gentlemen
of the bar, generally, seemed to be much agitated. As soon as Mr. Lewis
saw me, he hastened towards me on the outside of the bar, and told me, in
effect, that a “very extraordinary incident had occurred; that Mr. Chase,
after speaking in terms of great disapprobation of the defence at the
former trial, declared that the Court, on mature deliberation, had formed
and reduced to writing, an opinion on the law of treason involved in the
case; and that he should direct one copy to be delivered to the attorney
of the district, another to the prisoner’s counsel, and a third (after
the opening for the prosecution) to the jury, to take out with them.”
Here Mr. Harper rose, and said: Mr. President, surely it is improper that
the witness should repeat what Mr. Lewis told him, not in court, nor when
the judge was present.
Mr. Dallas, turning to Mr. Harper, said: “Sir, I know the rules of
evidence, and I mean to conform to them.” Then turning to the Vice
President, he continued, “If, Mr. President, the counsel’s patience had
lasted for a minute, he would have heard that I repeated Mr. Lewis’s
communication to the Court, and that it was not contradicted. What I have
said was necessary to introduce that fact; and surely, it is strictly
within the rules of evidence.”
Mr. Lewis and I exchanged an opinion on the impropriety of the conduct
of the Court; we determined (as I thought, when first recurring to
my memory for the facts, and as I still think, though I wish not to
speak positively) to withdraw from the defence; and we entered the bar
together. When there, something occurred which called the attention
on our part, and Mr. Lewis informed the Court, in effect “that there
was little dispute about the facts in the cause, and that as the Court
had deliberately prejudged the law, he could not hope to change their
opinion, nor to serve his client; while a submission to such a proceeding
would be degrading to the profession.” It was then, I think, that I
stated to the Court, the information which I had received from Mr. Lewis,
(but certainly it was either then, or, as it has been suggested to me
by a respectable gentleman of the bar, at the opening of the court on
the next day,) and I paused, to give an opportunity for contradiction or
explanation; for, although I had no doubt of Mr. Lewis’s intention to
deliver a correct representation of what had passed, it was possible,
and I might myself have mistaken the import of his communication. I
cannot now state all that Mr. Lewis told me, but I am confident that I
then repeated it all to the Court. No remark being made in consequence
of the pause, I proceeded to state a few comparative observations on the
province and rights of the judge, and the province and rights of the
advocate; and concluded with declining to act any longer as counsel for
the prisoner. The Court was soon afterwards adjourned. These are all
the material occurrences of the first day, which I recollect; except,
perhaps, that soon after I came into court, I heard Mr. Peters remark to
Mr. Chase, “I told you what would be the consequence. I knew they would
take the stud.”
On the next day, the court was opened, Fries was placed in the prisoner’s
box, the jury attended, and the number of spectators was increased.
Silence being proclaimed, Mr. Chase asked, “if the prisoner’s counsel
were ready to proceed on the trial?” and Mr. Lewis and I, successively,
declared, that we no longer considered ourselves as the counsel of Fries.
Mr. Peters then, as well as at other times, expressed a great desire that
we should overlook what had passed; he told us that the papers delivered
the day before had been withdrawn, and that he did not care what range we
took, either on the law, or the fact. Mr. Chase also said: “The papers
are withdrawn, and you may take what course in the defence you please;
but it is at the hazard of your characters.” I thought the expression was
in the nature of a menace; that it was unkind, improper, and unnecessary.
Mr. Lewis observed, in effect: “You have withdrawn the papers; but can
you eradicate from your own minds the opinion which you have formed, or
the effect of your declaration on the attending jurors, a part of whom
must try the prisoner?” Mr. Chase said: “If you think to embarrass the
Court, you will find yourselves mistaken.” He then asked Fries if he
chose to have other counsel assigned? Fries answered, that he did not
know how to act, but that he thought he would leave it to the Court and
the jury. On which, Judge Chase exclaimed, “Then we will be your counsel;
and, by the blessing of God, do you as much justice as those who were
assigned to you.” Mr. Lewis and I had visited Fries in prison during the
preceding afternoon; we had told him our determination to withdraw from
his defence, unless he and his friends wished us to resume it; and we
declared it to be, in our view of the case, his best chance to escape,
as we could entertain no hope of changing the opinion of the Court. He
finally left the matter to us; and I think Mr. Lewis in my hearing, with
my concurrence, advised him not to accept other counsel, if the Court
should offer to assign them. The rest of the facts, as stated by Mr.
Lewis, correspond so precisely with my recollection, that I presume,
after this recognition, it is unnecessary to repeat them. I wish it,
however, to be properly understood that, on the second day, both the
judges were extremely anxious to prevail on us to proceed in the defence;
and, as I understood, withdrew all the restrictions of the preceding
day. We persisted, however, in our determination; because, after what
had happened, we deemed it the best chance to save our client’s life,
and not because we wished, as has been insinuated, to bring the Court
into disgrace or odium. Fries was accordingly tried and convicted without
counsel.
On this course of argument, we could not ascertain the opinion of the
Court, nor how far the case of the Western insurrection would be deemed
to apply, till the charge was pronounced. But, after hearing the charge,
and after a new trial was granted, I confess the whole force of my mind
was bent to show, on the new trial, the strong distinction between the
cases of 1794 and those of 1799; and that even in England, there was no
authority since the Revolution of 1688, for construing the offence of
Fries to be treason, unconnected with the obligation of the judges to
conform to the previous adjudications.
The President. Both you and Mr. Lewis have stated that the jury were
present when the written opinions of the Court were handed to the clerk:
Could they hear what passed on the occasion?
Mr. Dallas. Undoubtedly, sir. I do not mean, however, the jury who tried
Fries, but the general panel of jurors, from whom Fries’s jury might have
been taken.
The Court rose about four o’clock.
MONDAY, February 11.
The Court was opened at 12 o’clock.
_Henry Tilghman, sworn._
I was present at the circuit court of the United States, for the district
of Pennsylvania, held on the 22d day of April, 1800. A very short time
after the opening of the court, (whether the general panel of jurors
had been called over or not, I do not recollect,) Judge Chase declared
that the Court had maturely considered the law arising on the overt
acts charged in the indictment against John Fries; and that they had
reduced their opinion to writing; he mentioned that he understood that
a great deal of time had been consumed on a former trial, and that in
order to save time, a copy of the opinion of the Court would be given to
the attorney of the district; another to the counsel for the prisoner,
and that the jury should have a third to take out with them. I took no
notes of what passed either on the first or second day. Fries was tried
on the third day, and having been appointed, with Mr. Levy, counsel for
Heany and Getman, indicted for treason, and who were actually tried on
the 27th or 28th, I deemed it my duty to attend the trial of Fries, to
take notes of the evidence, the arguments, and the charge of the judge.
I do not recollect that Judge Chase said any more on the first day than
what I have mentioned previous to his throwing a paper or papers on the
table round which the bar usually sit. The moment the paper or papers
were thrown on the table, Judge Chase expressed himself in these words:
“Nevertheless, or notwithstanding this,” (I cannot recollect which
expression he used) “counsel will be heard.” The throwing of the papers
on the table and the address of the judge caused some degree of agitation
at the bar; in a short time after the judge used the last expression, I
looked round and saw Mr. Lewis walking from under the gallery towards
the bar: I stepped towards Mr. Lewis, and met him directly opposite
the entrance into the prisoner’s bar. The prisoner, as well as I can
recollect, not being then in court, but being brought into court some
time that morning, I entered into conversation with Mr. Lewis, and as
well as I can recollect, during that conversation, Mr. Dallas came into
court. Mr. Dallas and Mr. Lewis had some conversation in my hearing,
after which they came forward to the bar; the paper, as well as I can
recollect, was then handed by Mr. Caldwell, the clerk of the court, to
Mr. Lewis. Mr. Lewis cast his eye on the outside of the paper, and looked
down, as if he was considering what to say. He threw the paper from him,
as it appeared to me, without reading it, and the moment he threw the
paper down, said, “My hand shall never be stained by receiving a paper
containing a prejudged opinion, or an opinion made up without hearing
counsel.” I cannot recollect which was the expression, but this was the
substance. I have not the least recollection that any thing passed on
the third day, between the counsel for the prisoner and the Court; for
when Mr. Lewis used these expressions, his face was not turned to the
Court, and he spoke with a considerable degree of warmth; the Court sat
in the south part of the room, and Mr. Lewis (I think) turned his face
full to the westward, when he used these expressions. The paper lay on
the table a considerable time; after which some gentlemen of the bar
took it up, and I for one copied it. Whether I took the whole of it,
and all the authorities cited, I cannot say. The prisoner having been
brought into court, his counsel had a good deal of conversation in my
hearing on the subject of supporting or abandoning his defence; that
conversation appears to me to have been accurately stated by Mr. Lewis
and Mr. Dallas. I do not recollect why the prisoner was not put on his
trial that day, but the Court adjourned between 12 and 1 o’clock. I went
home, and after taking a walk, on returning, I saw the district attorney
on my steps. He asked me whether I would have any objection to delivering
up the copy which I had taken of the opinion of the Court. I said I had
no objection, and gave it to him. That paper was not read on the first,
or any other day by the Court, or any thing stated by the Court, as the
substance of it. On the next morning, to wit, the 23d, the prisoner was
brought into court. The Court asked the prisoner’s counsel if they were
ready to proceed to the trial. Mr. Lewis rose and uttered a few words,
in order to show that they did not mean to proceed with it. Judge Chase
here interrupted Mr. Lewis--the particular expressions of the judge I do
not recollect; the substance of them was, that the counsel were not to
consider themselves bound by the opinion which the Court had reduced to
writing the day before; that the counsel were at liberty on both sides
to combat that opinion. Judge Chase, as well as Judge Peters, appeared
to be very anxious that the counsel should undertake the defence of the
prisoner. Judge Chase said, the cases at common law before the statute
of Edward the Third, ought not to be read to the Court: he mentioned the
case of a man whose stag the king had killed, and who said he wished the
stag’s horns were in the king’s belly; he also mentioned the man who kept
a public house, with the sign of a crown, and said he would make his son
heir to the Crown. He said such cases as these must not, shall not be
cited; and I think he made use of these expressions: “What! cases from
Rome, Turkey and France?” That, the counsel should go into the law, but
must not cite cases that were not law.
He said that he had an opinion in point of law as to every case that
could be brought before the Court, or else he was not fit to sit there.
He said something (but the precise words I do not pretend to recollect)
as to the counsel proceeding according to their consciences; he said that
the gentlemen would proceed at the hazard of their character, and when it
appeared pretty plain that the gentlemen would not proceed in defence of
the prisoner, he said, You may think to put the Court to difficulties;
but if you do, you miss your aim, or words in substance to that effect.
Judge Peters addressed the counsel, and said if an error has been
committed, why may it not be redressed? the paper has been withdrawn--and
I think both the judges concurred in expressing the sentiment that
matters were to be considered as if the paper had never been thrown on
the table. When Judge Peters mentioned that the paper had been withdrawn,
Mr. Lewis answered, The paper, it is true, is withdrawn, but how can the
Court erase from their minds an opinion formed without hearing counsel.
A good deal more passed which I do not recollect, having taken no notes.
Mr. Dallas addressed the Court, but I have no recollection of what he
said. The counsel continued firm in their determination to abandon the
prisoner: the Court took great pains to induce them to act as counsel for
the prisoner, and before Fries was remanded to jail, expressed their hope
that the counsel would think better of it, and appear in his defence. I
recollect nothing more of what happened on the second day. Should any
questions be put to me, they may awaken a recollection of what does not
now occur to me.
On the third day when the prisoner was brought to the bar, he was
asked if he had any counsel, (I think, on the second day, the Court
had mentioned to him that he might have other counsel,) he said no, he
would depend on the Court to be his counsel. Judge Chase said, The Court
will be your counsel, and by the blessing of God, will serve you as
effectually as your counsel could have done. The trial proceeded, and
after the testimony was given and a short statement of the case made by
the district attorney, the judge charged the jury; he told them they
were judges of the law as well as the fact. He stated to them that cases
determined in England, before their Revolution, should not be received by
the Court. I have my notes of the charge; he stated the law very much in
the manner as it was stated by Judge Patterson in the trial of Mitchell,
for whom I was counsel. I cannot undertake to recollect any thing farther
than I have already stated.
_William Rawle, affirmed._
The circuit court of the United States sat in Philadelphia in April,
1800. As the former proceedings in relation to the prisoners indicted
for treason were considered at an end, except from the intervention of
an act of Congress, it appeared to me most regular to quash all the
previous proceedings. I made a motion to this effect, which was granted.
On the same day the Court charged the grand jury, and I sent to them
bills against John Fries, and other persons charged with treason and
other offences. The bill against John Fries was returned on the 16th a
true bill, and he was immediately brought up, arraigned, and pleaded not
guilty. Messrs. Lewis and Dallas appeared as counsel for Fries. Copies
of the indictment, and lists of the jurors and witnesses, were furnished
to Fries as directed by law. The bringing on the trial was postponed
on account of the absence of George Mitchell, whom I deemed to be a
material witness. According to my best recollection it was not intended
that John Fries should be tried on the 22d, the first day alluded to. I
cannot say that John Fries was then at the bar. That circumstance does
not appear on the minutes of the clerk of the court. It was certainly not
my intention that he should have been brought up, but he may possibly
have been brought through mistake. Shortly after the Court met, Judge
Chase observed, that, as much time had been lost on the former trial or
trials, the Court had determined to express their opinion in writing,
on the point of law, that they might not be misunderstood; that they
had therefore committed that opinion to writing, and that the clerk
had made copies of it, one of which should be given to the district
attorney, one to the counsel for the prisoner, and one the jury should
take out with them: as these words were pronounced, several papers (I
think three) were handed down, or thrown down, as it were; my back was
to the Court, and whether this was done by Judge Chase or the clerk, I
know not. I immediately took up the one intended for me and began to
read it, but casting my eyes to the opposite side of the table, I saw
Mr. Lewis with another copy before him, looking at it, apparently, with
great indignation, and then throwing it on the table. I am pretty clear
nothing passed between the Court and the counsel in the course of that
morning. I observed much agitation among the gentlemen of the bar, who
were conversing with each other with apparent warmth; but having at that
time a very great burden of criminal prosecutions on me, my attention
was much engaged, and I did not hear distinctly what was said, nor did I
know, until the Court rose, that there was a probability of the counsel
for John Fries declining to act. I think that twenty-one persons were
that day brought before the Court charged with seditious combinations,
and who submitted to the Court. The Court rose pretty early in the
morning, and intimated that I should not call any witnesses in relation
to the submissions until the trials for treason were over. When the Court
rose I learnt from several gentlemen, that Mr. Lewis and Mr. Dallas were
disgusted with the conduct of the Court, and meant to decline acting as
counsel for Fries, and I have an indistinct recollection that I heard
something of this kind drop from Mr. Dallas himself. I went home, and had
been there but a few minutes, when Judge Chase and Judge Peters came in.
We went into another room, and Judge Peters began by expressing a good
deal of uneasiness, from an apprehension that the gentlemen assigned as
counsel for John Pries would not go on. Judge Chase said he could not
suppose that that would be the consequence. I supported the idea which
Judge Peters had expressed; I told him the gentlemen of the Philadelphia
bar were men of much independence and character, and that unless those
papers were withdrawn, and the business conducted as usual at our bar,
they probably would desist from conducting the defence. My recollection
at this distance of time cannot be very distinct, but I am pretty well
satisfied that Judge Chase expressed his regret that the conduct of the
Court should be so taken, and said, that he did not mean that any thing
which he had done should preclude the counsel from making a defence in
the usual manner. Judge Peters asked if I would consent to go out, and
undertake to recover the papers; I said I had no objection, and both the
judges concurred in requesting me to do so. I recollected seeing Mr.
Edward Tilghman and Mr. Thomas Ross engaged in making copies. I did not
recollect to have seen any others so engaged. I went to their houses and
asked for the copies, which were readily given, and took them to Mr.
Caldwell, clerk of the court. I asked him if he had noticed any others to
have been taken? He said he thought a copy had been taken by Mr. William
Meredith. I desired him to go to him and endeavor to recall it. I did
not know that Mr. Biddle, who was then a student in my office, had taken
a copy in part, or I should have desired him to give it up. From some
circumstances which I do not recollect, I find that I did not hand my own
copy to Mr. Caldwell. I now have it in my possession. The paper was not
read, I think, by any but those who transcribed it, and I entertained
an anxious hope, after what had taken place, that the gentlemen would
proceed with the defence of the prisoner. I shall now take the liberty of
referring to some original notes made by me at the time--from which I can
state what passed the following morning. So far as they go I believe them
accurate, though they may not enable me to relate all that was said. On
the 23d April, John Fries was brought and put to the bar, Messrs. Lewis
and Dallas attending. The Court asked if we were ready to proceed. Mr.
Lewis rose and said: If employed by the prisoner, I should think myself
bound to proceed, but being assigned--he was here interrupted by Judge
Chase, who said, “You are not bound by the opinion delivered yesterday,
you may contest it on both sides.” Mr. Lewis answered: I understood that
the Court had made up their minds, and as the prisoner’s counsel have a
right to make a full defence, and address the jury both on the law and
the fact, it would place me in too degrading a situation, and therefore I
will not proceed. Judge Chase answered with apparent impatience: “You are
at liberty to proceed as you think proper, and address the jury, and lay
down the law as you think proper.” Mr. Lewis answered, with considerable
emphasis, I will never address the court in a criminal case on a question
of law. He then took a pretty extensive view on the propriety of going
into cases decided before the Revolution, and said, if he was precluded
from showing that the judges since the Revolution in England had
considered themselves bound by the decisions before the Revolution, which
ought not to be the doctrine in this country, he must decline acting as
counsel for the prisoner. Judge Chase answered: “Sir, you must do as
you please.” Mr. Dallas then addressed the Court. He contended that the
rights of advocates had been encroached upon by the proceedings of the
day before. He went into a general view of the ground taken by Mr. Lewis,
and concluded with his determination not to proceed as counsel for John
Fries.
Judge Chase then observed, No opinion has been given as to facts in this
case. I would not let the witnesses be examined in the combination cases,
because I would not let the jury hear them before the trial of Fries came
on. As to the law, I knew that the trial before had taken nine days;
that many common law cases were cited, such as wishing a stag’s horns in
the King’s belly, and that of a man’s saying he would make his son heir
to the Crown; such cases ought not, shall not go to the jury. No case
can come before me on which I have not a decided opinion as to the law,
otherwise I should not be fit to preside here. I have always conducted
myself with candor, and I meant, gentlemen, to save you trouble. It is
not respectful, nor is it the duty of counsel, to say they have a right
to offer any thing they please. What! decisions in Rome, France, Turkey?
No lawyer will say that common law cases are law under the statute of
Edward the Third, nor justify those judges who overset the statute of
William, and overrule the necessity of having two witnesses to one overt
act, and to admit hearsay testimony to prove matters of fact. It is the
duty of counsel to lay down the law, but not to read cases that are not
law. Having thus explained the meaning of the Court, you will stand
acquitted or condemned to your own consciences, as you think proper to
act. But, gentlemen, do as you please. The course will be, the district
attorney will open the law, state his case, and produce his witnesses.
You are at liberty to controvert the law as to the matter, but the manner
must be regulated by the Court. Judge Peters said, You are to consider
every thing done yesterday as withdrawn. Mr. Lewis replied, True, sir,
the papers are withdrawn, but the sentiments still remain; I shall not
therefore act.
Mr. Dallas expressed the same determination, which I did not take down.
A pause for a few moments took place, when Judge Chase said, You cannot
put the Court into a difficulty by this conduct, gentlemen; you do not
know me if you think so; and, desiring the persons between him and the
prisoner to stand aside, and addressing himself to John Fries, he asked,
Are you desirous of having other counsel assigned you, or will you go on
to trial without? John Fries, after a pause, said he did not know what
to do; he would leave it to the Court. Under these circumstances I felt
a repugnance to go on with the trial, not wishing to act in a case so
extremely singular. I therefore moved to postpone the trial to the next
day; the Court readily concurred, and Fries was remanded to jail.
On the 24th, Fries was brought to the bar again. Judge Chase asked him
if he had any counsel. He told the Court that he relied on them as his
counsel, and he expressed himself with a degree of firmness and composure
that convinced me that his decision was formed on mature reflection.
Then, Judge Chase answered, By the blessing of God we will be your
counsel, and do you as much justice as those assigned you.
_George Hay, sworn._
The greater part of the evidence I am to deliver relates to what was
said by me as counsel for J. T. Callender, who was indicted for a libel
on the President of the United States, and what was said by _one_ of the
judges; for I do not recollect to have heard the voice of Judge Griffin
at any time during the trial. In order to make this statement as accurate
as possible, as my memory is not strong, it is necessary to resort to
a statement made by myself and the counsel associated with me in the
defence of J. T. Callender, which I now hold in my hand, and every part
of which, according to my best recollection, is correct.
Mr. Harper here interrupted Mr. Hay, and said, The witness may refer to
any thing done by himself at the time the occurrences happened which he
relates. But I submit it to the Court how correct it is to refer to what
was not done by him, or done at the time.
The President asked Mr. Hay whether the notes were taken by him.
Mr. Hay. The statement was made by different persons. Some parts were
made by myself, perhaps the greater part; the rest by Mr. Nicholas and
Mr. Wirt. I believe I shall be able to state from it every material
occurrence which took place at the time.
President. Have you the parts made by yourself separate?
Mr. Hay said he had not.
The President then put the question, whether the witness should be
permitted to use the paper? and, the question being taken by yeas and
nays, passed in the negative--yeas 16, nays 18.
Mr. Randolph asked the witness to state to the Court the circumstances
which took place during the trial of James T. Callender, and particularly
what respected the excuse and testimony of John Basset.
Mr. Hay. I will state as well as I can what fell from the judge, and
which appeared to me to be material. After some previous observations,
the counsel for the traverser claimed for their client his constitutional
right to be tried by an impartial jury. I cannot pretend to relate
precisely either the course of proceeding or the exact words which
were used, since I am deprived of the aid of those notes which I know
to be correct. I shall not, therefore, recite the precise words, but I
shall give the substance of them, and the words themselves as nearly as
possible. According to my best recollection, Judge Chase’s declaration on
that point was, that he would see justice done to the prisoner in that
respect. In order to obtain the object which the counsel for Callender
had in view, we pursued this course. Believing that a majority of the
petit jury, if not all of them, were men decidedly opposed to J. T.
Callender, in political sentiments, and thinking it probable, from the
state of parties at that time, that they had made up their minds, we
wished to ask every juror, before he was sworn, whether he had ever
formed an opinion with respect to the book called “The Prospect before
Us.” According to my best recollection, Judge Chase interfered, and told
us it was not the proper question. He said he would tell us what the
proper question was. He then went on to state that the proper question
was this: “Have you ever formed and delivered an opinion concerning the
charges in this indictment?” Though I have but little dependence on my
memory, in general, yet in this I am certain, that I not only give the
substance, but the identical words used. To this question an answer was
necessarily given in the negative.
When Mr. Basset was called by the marshal, he manifested some repugnance
to serving on the jury. He said, according to my best recollection, that
he was unwilling to serve, because he had made up his mind as to that
book. I do not pretend to say that the words used were precisely those I
state. He may have expressed himself in the words ascribed to him by the
stenographical statement given of the trial. The objection, thus made
by Mr. Basset, was overruled by Judge Chase, who asked him whether he
had ever formed and delivered an opinion concerning the charges in the
indictment. He was sworn to answer this question. Like the other jurors,
he answered in the negative, and the judge ordered him, like the other
jurors, to be sworn on the jury. He was sworn, and did serve.
Mr. Harper. Was the word used by the judge, _and_ or _or_?
Mr. Hay. I am perfectly clear it was _and_, and not _or_.
In the state of things at that time, and seeing the temper that was
manifested on the trial, I would not, and did not, ask the juror a
single question without submitting it to the Court, and soliciting
their permission to ask it. I solicited the leave of the Court to ask a
question. The reply of the judge was this--the difficulty I experience
at this moment in stating the precise words, furnishes the reason I had
for wishing to have recourse to the statement I had in my hand; since I
am denied that indulgence, I will not pretend to state literally what
was said, but I will state the substance. I told the judge I wished
to ask a question. “What,” said the judge, “is the question you want
to put?--state it. If I think it a proper question, or if I choose
it, you may put it. Come, what is your question?” Notwithstanding the
humiliation I felt at being addressed in such a way before a crowded
audience, I asked, “Have you formed (leaving out, “and delivered”) an
opinion concerning the book from which the charges in the indictment are
taken?” The reply of Judge Chase was, “no, sir, No, you shall ask no
such question.” And the question was not asked. This is all I recollect
at this moment respecting Mr. Basset, and the occurrences connected with
that part of the trial.
It was stated by Callender, in his affidavit, that Colonel Taylor, of
Caroline, was a material witness; but of this I am not certain, because
I have not read the affidavit since the trial. In the interval that
elapsed between the day on which the first motion was made, and that
on which the trial took place, Tuesday, Colonel Taylor was summoned.
When he came to town, I know not. I have no recollection of having
seen him until he came into court. I had, therefore, no opportunity of
ascertaining whether it would be in his power to furnish the accused
with the evidence he expected to derive from him. After the witnesses
on the part of the United States had been adduced to prove the fact of
publication, and after the attorney of the United States had opened
the case, and stated the law arising upon the evidence, Colonel Taylor
was offered to the Court as a witness. He was sworn; and, immediately
after, or probably while he was swearing, Mr. Chase asked the counsel of
Callender what they expected to prove by him. If I recollect rightly,
Mr. Nicholas, one of my associates, observed that we did not know
distinctly what could be proved by Colonel Taylor; but that we expected
to prove what would amount to a justification of one of the counts in the
indictment; that we expected to prove that Mr. Adams, the then President
of the United States, had avowed, in conversation with Colonel Taylor,
sentiments hostile to a republican Government; and that he had voted in
the Senate of the United States against the law for sequestering British
property in this country, and against the law for suspending commercial
intercourse between the United States and the Kingdom of Great Britain.
I do not recollect precisely the words which were used by Mr. Nicholas,
in making the observations that accompanied this statement; but I think
he said he hoped that it would be understood that he was not tied down
to these particular points, saying that probably the answers given by
Colonel Taylor might suggest other questions proper to be put. Nor do
I use the precise words in which Judge Chase made an objection; but I
do remember that the objection was made. The principle upon which he
founded his objection was this, that Colonel Taylor’s evidence did not
go to a justification of any one entire charge; and he declared Colonel
Taylor’s evidence to be inadmissible on that ground. The judge was then
asked by Mr. Nicholas whether we might not prove part of a charge by one
witness, and the other part by another. The judge answered him, that he
desired him to understand the law as he had propounded it; and the law
was this: that this could not be done; that Colonel Taylor’s evidence
related to only one part of a charge, and that he could not prove one
part by one evidence, and one part by another. I then observed to the
judge that I thought Colonel Taylor’s evidence admissible even on the
principle laid down by the Court; that I thought his testimony would go
to prove both members of the sentence. The one asserted that Mr. Adams
was an aristocrat, the other, that he had proved faithful and serviceable
to the British interest; and that he could prove that he had heard Mr.
Adams make the remarks already stated; and that he had proved serviceable
to Great Britain in the way mentioned by the author, that is, in giving
the two votes in the Senate, alluded to in the work. The judge did not
say in express terms that the position taken at the bar was wrong, but
he said that the evidence of Colonel Taylor was inadmissible, and that
the counsel knew it to be so; and I believe it was at the same moment of
time he said that our object was to deceive and mislead the populace.
I remember these expressions as well as if I had heard them yesterday.
Finding that the attempt I had made to render a service, not to the man,
but to the cause, instead of affording service to the cause, only brought
on me the obloquy of the Court, I felt myself disgusted, and said no more
on the subject.
I recollect that we were requested by the judge to reduce to writing the
questions that we wished to propound to Colonel Taylor. I thought the
measure so novel and unprecedented that I was not disposed to comply
with this desire. The questions were, however, stated in writing by Mr.
Nicholas, who observed that he hoped we would not be confined in the
examination of the witness to the questions thus stated in writing. If I
mistake not, before the questions were reduced to writing, Mr. Nicholas
made some observations about the mode pursued by the Court in reference
to the attorney for the United States, and that exercised towards the
counsel for the prisoner; that the attorney for the United States had
not been required to state in writing the questions he wished to ask.
When this remark was made to the judge, he said that the attorney for the
United States had stated in the opening of the case all that he expected
to prove; “but though this were done, we were not bound to do it.” My
impression is that that word escaped the judge several times.
Mr. Nicholson. What word?
Mr. Hay. The word “we.”
Mr. Nicholson. Did it refer to the Court as well as the attorney?
Mr. Hay. So, sir, I understood it.
The fourth article relates to the refusal of the judge to postpone the
trial on the affidavit of Callender; on which I can only say that the
affidavit was filed, but whether regularly drawn or not I do not know.
This affidavit, according to my best recollection, stated the absence of
material witnesses.
The next article relates to a subject that it is very unpleasant to me to
make any remarks upon, because I feel myself to be a party concerned. The
judge is charged with--
[Mr. Hay here read the third, fourth, and fifth clauses of the fourth
article.]
There were many expressions used by Judge Chase during the trial which
were uncommon, and which I thought, and still think to be so. With
respect to the asperity with which he censured me, I shall not--
Mr. Harper interrupted the witness, and desired him to state the
expressions, and let the Court judge for themselves.
Mr. Hay. The first expression which made a very strong impression on my
mind, was this: In the course of the argument, urged by me in support of
the motion for a continuance to the next term, I assumed it as a clear
position, that the law of the State of Virginia, which directs that the
jury shall assess the fine, would govern in this case. As soon as I got
to that part of the argument the judge interrupted me, and gave me to
understand that I was mistaken in the law, and added, the assessment of
the fine by the jury may be conformable to your local and State laws,
but when applied to the federal courts, it is a “_wild notion_.” In the
case of Colonel Taylor’s evidence, which I have already stated, the judge
said that we knew the evidence to be inadmissible, though we pressed it
upon the Court, and then the expression followed which has been already
mentioned, that we were endeavoring to mislead and deceive the populace.
At another time he was pleased to observe, Gentlemen, you have all along
been in error in this cause, and you persist in pressing your mistakes
on the Court. On more occasions than one he charged the counsel with
advancing doctrines they knew to be wrong. I endeavored in one part of
the cause to satisfy the Court that the book called the “Prospect before
Us,” could not be given in evidence in support of the indictment, because
the title of the book was not mentioned in the indictment. In support of
my argument, I observed to the Court that if the indictment mentioned the
book from which the charges were formed, and any subsequent prosecution
should afterwards be instituted, the traverser would have nothing more
to do than to produce a copy of the record, and plead in bar of a
subsequent prosecution; but that according to the opinion of the Court,
the situation of the traverser would be more precarious than according to
the doctrines for which I contended; for that the traverser, if he should
plead a former prosecution in bar, would not be able to prove the fact by
comparing the record with the indictment; but must resort to extraneous
evidence to prove that the subsequent prosecution was founded on the
same publication that gave rise to the first. The judge was pleased to
observe, without seeming to understand the distinction that I endeavored
to draw, that I knew the present prosecution could be pleaded in bar. I
certainly did know it, and was endeavoring at that very time to show by
my argument that the better mode of proving the truth of the plea would
be by a copy of the record, rather than by an appeal to parol testimony.
Judge Chase again interrupted me, and said, I knew that this prosecution
might be pleaded in bar.
In the course of the same argument, which I addressed to the judge, for
the purpose of showing the truth of the positions we had stated, I
observed that according to the established doctrine, the words “tenor and
effect,” in an indictment for a libel, bound the party to the literal
recital of the parts charged as libellous. In support of that opinion I
quoted several authorities that satisfied my mind. The judge was pleased
to tell me, I was mistaken in my application of them; but I do not
remember his precise words. He said the words “tenor and effect” did not
oblige the prosecutor to give more than the substance of the paper meant
to be recited. It is contended, said he, that the book ought to be copied
_verbatim et literatim_; I wonder, he continued, _they_ do not contend
for _punctuatim_ too.
Mr. Nicholson. Was this observation addressed to the bar?
Mr. Hay. It appeared to me to be intended for the people; for he looked
round the room when he said, with a sarcastic smile, I wonder they do
not contend for _punctuatim_ too. I recollect also, that when Mr. Wirt,
who was associated with me as counsel for the traverser, was addressing
the Court, he was ordered by Judge Chase to sit down--in this precise
language, _sit down_. The judge also declared that the counsel on the
part of Callender should not address any observations to the jury
concerning the unconstitutionality of the second section of the sedition
law, in respect to prosecutions for libellous publications.
When Mr. Wirt was arguing from a proposition he had laid down, he
said the conclusion which followed was perfectly syllogistical. The
judge bowed to him in a manner I cannot describe, and said, “_A non
sequitur, sir._” I do not remember any other expression used by the judge
calculated to deter the counsel from proceeding in the defence of J. T.
Callender. But I do remember that I was more frequently interrupted by
Judge Chase on that trial, than I have ever been interrupted during the
sixteen years I have practised at the bar. I do not state how often I was
interrupted, because I do not recollect; but I know the interruptions
were frequent, and I believed them to be very unnecessary, not only as
they regarded myself, but the counsel who were associated with me in the
defence.
TUESDAY, February 12.
The Court met at 12 o’clock.
_John Taylor, sworn._
Mr. Randolph. The witness will please to state the circumstances that
passed in the rejection of his testimony, and other circumstances which
have any relation to the conduct of Judge Chase on the trial of Callender?
Mr. Taylor. I was summoned as a witness on that trial on the part of
Callender. I attended and was sworn. On being sworn, Judge Chase inquired
what it was intended to prove by my testimony? I do not recollect the
expressions of Judge Chase, nor do I recollect precisely the answer made
to this inquiry; but Judge Chase desired the counsel for the accused to
reduce their questions to writing. They did so.
I had come into court very near the hour when the Court met, nor had I
previously given any intimation of the testimony I could give either to
Callender or his counsel. I should have added that, after, I think, the
judge had declared the witness could not be examined, he applied to the
district judge for his opinion; who replied in so low a voice that I
could not well tell what he said. But this was after he had given his own
opinion that my testimony could not be received.
Mr. Randolph. Did you observe anything unusual in conducting the trial?
Mr. Taylor. One or more motions were made by the counsel for Callender,
who was interrupted by Judge Chase repeatedly. The words in which these
interruptions were couched, I cannot recollect, though I formed an
opinion of the style and manner of them; the effect of which was to
produce laughter in the audience at the expense of the counsel. If I am
required to declare the character in which I conceived them to be made, I
am ready to do so.
There was here a short pause, when Judge Chase rose and said, he had no
objection to the opinion of the witness being delivered.
Mr. Taylor. I thought the interruptions were in a very high degree
imperative, satirical, and witty.
Mr. Randolph. Did there appear to you any thing unusual in the manner of
the counsel for the accused towards the Court?
Mr. Taylor. I neither discovered the least degree of provocation given
by the counsel, nor perceived any anger expressed by the Court. Judge
Griffin was silent, nor were Judge Chase’s interruptions accompanied by
the indication of any anger, as far as I could perceive.
To an interrogatory made, Mr. Taylor said, the interruptions of the Court
were extremely well calculated to abash and disconcert counsel.
Mr. Harper. You have said you considered the interruptions of the Court
as highly calculated to abash the counsel; did you mean thereby to give
your opinion that they were so intended, or that such was their tendency?
Mr. Taylor. I thought they were so intended, and they had their full
effect. They were followed by a great deal of mirth in the audience. The
audience laughed, but the counsel never laughed at all.
_Philip N. Nicholas, sworn._
In the year 1800, in the month of May, the circuit court of the United
States sat at Richmond. Of this court, Mr. Chase and Mr. Griffin were
the judges. I believe Mr. Chase sat alone for some time--for how long I
do not recollect. Mr. Griffin did not, I believe, take his seat until
the motion to continue the cause was renewed. On the first day of the
court Judge Chase delivered a charge to the grand jury, and called
their attention, in a particular manner, to infractions of the sedition
law. The grand jury returned with a presentment against James Thompson
Callender, for a libel against the President, by the publication of
a work, entitled “The Prospect before Us.” On this presentment, the
attorney for the district filed an indictment, which the grand jury found
a true bill.
Process was immediately issued on the indictment. My impression at the
time, and until very lately, was, that the process issued was a bench
warrant. I have lately heard that it was a _capias_. For several days
it was believed that Callender, who resided at Petersburg, could not
be found; but the marshal at length arrested him, and brought him into
court. Mr. Hay and myself undertook his defence. My motive was, that I
believed the sedition law unconstitutional, and of course oppressive to
any person prosecuted under it.
Mr. Hay and myself had an interview with Callender, in order to ascertain
the grounds on which he expected to make his defence. Callender informed
us that his witnesses were considerably dispersed, and that there were
many documents which it would be necessary for him to obtain, before he
could be prepared for his trial. An affidavit was drawn, stating the
absence of Callender’s witnesses, the want of the documents, and that
the counsel could not be prepared during that term. On this affidavit
was founded the motion to continue the cause. This motion was urged with
great earnestness and zeal, as we were convinced that justice could not
be done if the case was tried during that term. The arguments principally
urged by us were, that the defendant had a constitutional right to
compulsory process for his witnesses, and to counsel, but that these
privileges would be nugatory if the Court would not allow time to summon
the witnesses, and for counsel to prepare for the defence.
The motion to continue the case was overruled, and Judge Chase directed
the jury to be called. When the jury came to the book, I stated to the
Court that I believed there was ground of challenge to the panel in
consequence of one of the jurors, who was returned, having expressed
opinions very hostile to the traverser. Mr. Chase, after looking into
an authority which I quoted, and also into Coke Littleton, said the law
was clear, that our objection did not apply to the panel, but to the
individual juror. He further said, that we must proceed regularly; that
we might either introduce testimony to prove that a particular juror
had expressed an opinion on the case, or we might examine the jurors as
they came to the book. We preferred the latter mode, and Mr. Hay asked
if he might ask a question of the first juror who was sworn. Mr. Chase
said that Mr. Hay must submit the question to his previous inspection,
and that, if he thought it a proper question, it might be asked. Mr.
Hay stated that the question which he wished to ask, was, Have you
ever formed an opinion on the work, entitled “The Prospect before Us,”
from which the charges in the indictment were extracted? Judge Chase
said that the counsel should not ask that question; that the only
proper question was, Have you ever formed and delivered an opinion on
the charge in the indictment? I say, (continued the judge,) formed and
delivered; for it is not only necessary that he should have formed, but
also delivered an opinion, to exclude the juror. The judge propounded
the last-mentioned question to the first juror, and he replied that he
had never seen the indictment, or heard it read. The judge said he was
a good juror, and desired he might be sworn. Mr. Hay requested that the
indictment be read to the juror, that he might be thereby enabled to say
whether he had formed and delivered an opinion on the indictment. The
judge replied, that he had already indulged the counsel as much as he
could, and they ought to be satisfied; he refused to let the indictment
be read to the juror. The clerk then called the jury and swore them, till
he came to John Basset, who in reply to the previous question said, he
never had seen the indictment or heard it read. But Mr. Basset seemed
to have considerable scruples at serving, and said he had formed and
delivered an opinion that the book called “The Prospect before Us,”
came within the sedition law. Judge Chase, however, said he was a good
juror, and he was sworn and served as such. The witnesses on the part of
the prosecution were called and sworn, and, among others, Mr. Rind was
examined to prove the publication of “The Prospect before Us.” Mr. Hay
observed, that no witness who was in any way concerned in the printing
of the “Prospect,” was bound to criminate himself. Mr. Chase admitted
this to be correct, but declared that the witnesses might rest assured
that no person would be prosecuted in consequence of any evidence given
in the case then before the court. Under these circumstances, Mr. Rind
proved that he had printed part of the “Prospect” for Callender, and took
out of his pocket some of the original sheets from which he had printed
parts of the work. Judge Chase himself compared these sheets with the
work as published, and they were found to correspond. After the testimony
on the part of the prosecution was finished, Col. Taylor of Caroline
was called on the part of the traverser, and, after he was sworn, Judge
Chase asked with apparent haste and earnestness of manner, what we
expected to prove by that witness. We said we expected to prove that Mr.
Adams had avowed in the presence of the witness sentiments favorable to
monarchy or aristocracy, and that he had voted in the Senate against
the sequestration of British debts, and the suspension of commercial
intercourse with Great Britain. Judge Chase then said that we must reduce
the questions to writing. This I objected to, and stated that it was
a thing very unusual in our courts; that it had not been required by
the Court of the district attorney, when he examined witnesses against
Callender; that it involved a dangerous principle, and was calculated to
subject every question of fact to the control of the Court; besides, I
added, that I did not know the extent to which Col. Taylor’s evidence
would go; that I wished him to state all he knew, and that very probably
the examination would point out new questions proper to be asked. I then
stated that if the Court insisted on the questions being reduced to
writing, I would comply with their direction, but that I hoped it would
not be considered as precluding us from asking any additional questions.
The questions were then reduced to writing, and are as follows, viz:
1. Did you ever hear Mr. Adams express any sentiments favorable to
monarchy or aristocracy, and what were they?
2. Did you ever hear Mr. Adams, while Vice President, express his
disapprobation of the funding system?
3. Do you know whether Mr. Adams did not, in the year 1794, vote against
the sequestration of British debts, and the suspension of intercourse
with Great Britain?
Judge Chase, after examining the questions, declared Col. Taylor’s
evidence inadmissible. No evidence can be received, said the judge,
which does not go to justify the whole charge; the charge is, that
the President is a professed aristocrat, and has proved faithful and
serviceable to the British interest. Now, you must prove both these
points, or you prove nothing, and as your evidence relates to one only,
it cannot be received; you must prove all or none. These, I believe, were
the precise words of the judge. I think it right here to state that after
Mr. Chase had declared Colonel Taylor’s evidence inadmissible, he said
to the district attorney, that although the questions were improper, he
wished the attorney would consent to let them be asked of the witness.
The attorney said he could not consent. The evidence of Colonel Taylor
being excluded, the attorney for the United States addressed the jury,
and commented at considerable length on the indictment. After that, Mr.
Wirt addressed the jury for the defendant. He premised that the counsel
for the traverser were placed in a very embarrassed situation; that
the prisoner during the same term was presented, indicted, arrested,
arraigned, tried; and that this precipitation precluded the possibility
of obtaining witnesses or making the necessary preparations for arguing
a cause of so much magnitude. Here Judge Chase interrupted Mr. Wirt, and
told him, that he would not suffer any thing to be said which reflected
on the Court. Mr. Wirt said he did not mean to reflect on the Court; his
object was only to apologize to the jury for the lameness of the defence.
Mr. Chase replied that his apology contained the very reflection he
disclaimed, and desired him to go on with the cause. Mr. Wirt then said,
that an act of Assembly had adopted the common law of England as a part
of the laws of Virginia; that an act of Congress had directed the United
States courts sitting in Virginia to conform to the laws of the State in
which such court might happen to sit; that by the common law the jury had
a right to decide on the law as well as the fact. He then said, that
if the jury upon inquiry should find the sedition law unconstitutional,
they would not consider it as law, and if they did, they would violate
their oaths. Here Mr. Chase said to Mr. Wirt, Sit down, sir. Mr. Wirt
endeavored to explain, and said, I am going on, sir, to----No, sir, said
Mr. Chase, you are not going on; I am going on. Judge Chase then read
from a paper, which he held in his hand, an instruction to the counsel
that they should not address the jury on the constitutionality of the act
of Congress, but that arguments might be addressed to the Court to prove
the right of the jury to consider the constitutionality. Mr. Wirt then
addressed the Court. He said he had not considered the case elaborately;
that it appeared to him so clearly that the jury had the right contended
for, that he did not imagine it required any great research to prove it.
He then proceeded to state that it was certainly the right of the jury
to consider of and determine both law and fact. Mr. Chase here remarked
that Mr. Wirt need not give himself trouble on that point; we all know,
said he, that the jury have a right to decide the law. Mr. Wirt then
said, that he supposed it equally clear that the constitution is the
law. Yes, sir, said Mr. Chase, the supreme law. If, then, said Mr. Wirt,
the jury have a right to decide on the law, and if the constitution is
law, it follows syllogistically that they have a right to decide on the
constitutionality of the law in question. A _non sequitur_, sir, said
Judge Chase. Here Mr. Wirt sat down.
_John Thompson Mason, sworn._
Mr. Randolph. It has been contended on the part of the respondent, that
the _quo animo_ determines the guilt or innocence of an action; now,
if the _quo animo_ with which he went down to Richmond to execute the
sedition law, can be shown, it will have an important bearing on his
conduct. I wish, therefore, to ask the witness this question: Did you
ever hear Judge Chase, previous to the trial of Callender, utter any
expression, and, if any, what was it, on the subject of Callender’s
prosecution, or respecting the book called “The Prospect before Us;” did
he say that the counsel of the Virginia bar were afraid to press the
execution of any law, and particularly the sedition law; did he say that
he had a copy of that book, or what did he say? State the circumstances
particularly.
Mr. Mason. The question refers to circumstances of which I have but an
indistinct recollection, and which happened in a way which renders it
extremely unpleasant on my part to relate them. Judge Chase presided
in the circuit court held at Annapolis in the spring of the year 1800;
during the term a man by the name of Saunders was tried for larceny,
and found guilty. After sentence was passed upon him, he was taken out
of court to receive it. The press of the people being very great, the
judges and myself were detained within the room. Judge Winchester,
Judge Chase, and myself had a conversation, altogether of a jocular
complexion. I think it was just after he delivered his valedictory, but
how to connect the circumstances at this time, I do not know. I remember,
however, that he asked me my opinion of the book called “The Prospect
before Us;” I told him I had not seen it, and from the character I had
heard of it, I never wished to see it. He told me, in reply, that Mr.
Luther Martin had sent a copy to him, and had scored the parts that were
libellous, and that he would carry it to Richmond as a proper subject
for prosecution. There was a good deal of conversation besides, but I do
not recollect it. There was one expression, however, that he used, which
just occurs to my memory, and which I will repeat, that before he left
Richmond, he would teach the people to distinguish between the liberty
and the licentiousness of the press. He said that he was as sincere a
friend to the liberty, as he was an enemy to the licentiousness of the
press. There was a sentiment he expressed, which I cannot undertake to
give in his precise words, that if the Commonwealth or its inhabitants
were not too depraved to furnish a jury of good and respectable men, he
would certainly punish Calender. I do not precisely recollect the words:
I never repeated this conversation before, and seldom or ever, after it
occurred, thought of it.
_John Heath, sworn._
During the trial of J. T. Callender, I attended at the court in
Richmond as one of the bar. I had occasion to apply to the Court for
an injunction. The motion not having been decided upon, I went round
to Crouch’s, where Judge Chase lodged, and found him in his chamber
alone, in which I thought myself very fortunate. We then talked over the
application I had made the day before for an injunction; while talking
on it, Mr. David M. Randolph, the then marshal, stepped in with a paper
in his hand. The judge accosted him, and asked him what he had in his
hand? He said that he had the panel of the petit jury summoned for the
trial of Callender. This was after the indictment was found by the grand
jury. After Mr. Randolph had mentioned that it was the panel of the petit
jury that he had in his hand, Judge Chase immediately replied, Have
you any of those creatures called Democrats on the panel? Mr. Randolph
hesitated a moment, and then said that he had not made any discrimination
in summoning the petit jury. Judge Chase said, Look it over, sir, and if
there are any of that description, strike them off. This is all I know of
this affair.
The Court rose at 4 o’clock.
WEDNESDAY, February 13.
The Court was opened at half past 2 o’clock.
_James Triplett, sworn._
Mr. Randolph. I wish to know whether you ever heard previous to, or
during the trial of Callender, any expressions used by the respondent,
Judge Chase, manifesting a hostility toward J. T. Callender, and what
were those expressions?
Mr. Triplett. I recollect to have had a conversation with Judge Chase on
our passage in the stage down to Richmond. A book was handed to me by
him, and I was asked if I had read it? I was asked whether I had seen
him, (Callender?) I told him I had never seen him. There was a story
recited about the arrest of Callender by a warrant of a magistrate, under
the vagrant act of Virginia; I recollect that the judge’s reply was, “It
is a pity you have not hanged the rascal.”
Mr. Randolph. Were there any other expressions of this nature used, after
you got to Richmond?
Mr. Triplett. I did not hear any thing particular; but I think the judge
did say something about the Government of the United States showing
too much lenity towards such renegadoes. I do not recollect any other
conversation passing between us at that time, until after the Court
was sitting, when Judge Chase was the first who informed me of the
presentment being made by the grand jury against Callender. At the same
time, he informed me that he expected I would have the pleasure of seeing
Callender next day before sundown, that the marshal had that day started
after him for Petersburg.
Mr. Randolph. We wish you, as well as your memory serves, to state not
only the substance, but the exact expressions used by the judge.
Mr. Triplett. I will state them as well as my memory serves me. Some time
after this conversation, I met the judge at the place where he boarded;
he said that the marshal had returned without Callender, and used this
expression, “I am afraid we shall not be able to get the damned rascal at
this court.”
_John Basset, sworn for the defence._
At the request of Mr. Harper, and with the consent of the Managers, _John
Basset_, a witness on the part of Judge Chase, was sworn and examined,
in consequence of the peculiar situation of his family requiring his
immediate return home.
Mr. Harper. Relate the circumstances that took place relative to your
being sworn on the jury, on the trial of Callender, and what the
application to the Court was on your behalf?
Mr. Basset. The circuit court of the United States at which James T.
Callender was presented and indicted for a libel, was held on Monday
the second or third of June. I left home in the morning and arrived in
Richmond as early as might be expected. On my arrival I saw David M.
Randolph, who was standing at a corner of a street; perceiving me, he
came towards me; before I alighted from my horse, he informed me that
I had been summoned as a grand juror, and that for not appearing had
been crossed, that it was my duty to go to the court and justify myself
for my absence; that he summoned me on the petit jury for the trial of
Callender, and that my serving in that capacity would be an apology for
my previous absence. I presented myself to the Court, but the trial did
not come on that day. The second day I attended also. I knew very well
that the law under which the traverser was to be tried, was odious to
my fellow-citizens; I knew it was conceived to be a great oppression to
the liberty of the subject, and I believed that great umbrage would be
given to the mass of the people by those who should undertake to execute
that law. I was weak or wicked enough to be among that class of people
called federalists, and I did believe that the law [sedition law] was
constitutional. I felt myself bound, when called on to be a juryman, to
make a declaration of my political sentiments. I made this declaration to
relieve the impression on my own mind, and not in order that it should be
considered that I declined, in consequence of my political opinions, to
serve on Callender’s trial, or in any other case. I thought it possible
that I might be excused; but if I were found by the Court to stand in a
proper relation between my country and the traverser, I would cheerfully
serve. My object was to justify my own conduct to myself and to the whole
world. I made use of these expressions, and I believe I repeat the very
words, but I am well assured that I shall express the force and efficacy
of what I said. I declared to the judge that my politics were federal;
that I had never seen the book called “The Prospect before Us,” but I
had seen in a newspaper some extracts from it; that if the extracts were
correctly taken from the book, and if the traverser was the author or
publisher of that work, it appeared to me that it was a seditious act;
that I had formed and expressed an unequivocal opinion, that the book
was a seditious act; that I had never formed an opinion in respect to
the indictment, for I had neither seen it nor heard it read. The Court
considered me a good juror, and I was sworn accordingly.
Mr. Bayard. What was the general deportment of the judge to the counsel,
and of the counsel to the Court?
Mr. Basset. The different coloring through which the same things are seen
make some men see things differently from others. My own opinion is,
that the judge conducted himself with decision unmixed with severity,
and that he was witty without being sarcastic. It was my impression that
the judge wished the prisoner to have a full hearing, that he might be
acquitted, if innocent, and found guilty, if really guilty. It appeared
to me that the sole point on which the counsel hoped to save their
client was by proving the unconstitutionality of the sedition law, and
it appeared to me that they could not form a reasonable expectation of
acquitting him on any other ground. I believe his counsel believed the
law unconstitutional, and thought they had eloquence and argument enough
to convince the jury of it. I believe they thought the judge deprived
them of their right to address the jury on that point; and that having
the cause very much at heart, they were vastly mortified that the Court
did not permit them to take the course they wished. They appeared to
consider themselves as advocating the cause of an oppressed citizen, and
they felt hurt at not being allowed the mode of defence which in their
opinion the law authorized. In all their arguments they travelled but
a little way before they came to the point that went to prove the law
unconstitutional, and the judge declared, at every such time, that they
had no right to address the jury on that point; that the constitution
had made the Court the sole judges of the law as far as it respected
its constitutionality. From these circumstances, it is my impression
that the altercation between the bar and the Court arose solely from the
sensibility of the counsel to this particular subject, and from being
deprived, as they supposed, of their rights.
The President. What were the particular causes of irritation between the
judge and the counsel?
Mr. Basset. I have stated what I considered the causes. They arose from
the counsel adverting to that particular point, and their so frequently
doing it occasioned the judge to elevate his voice, and to pronounce over
and over again what he conceived to be the law.
The Court rose at 4 o’clock.
THURSDAY, February 14.
The Court was opened at 12 o’clock.
_George Read, sworn._
Mr. Randolph. The witness will please to state what he knows in relation
to certain proceedings at a circuit court of the United States, held at
Newcastle, in the State of Delaware, in the month of June, 1800.
Mr. Read. It is incumbent on me to state that several years have elapsed
since the transactions which I am now about to relate occurred; of course
I cannot pretend to say that the language I shall use to convey the
sentiments delivered by Mr. Chase is precisely according to what occurred
at the time; but the substance of what I relate will be correct. The
transactions to which I presume I am called to testify took place at a
session of the circuit court, held at Newcastle, for Delaware district,
in June, 1800. The Court sat two days, viz: on the 27th and 28th days of
the month. At that court, Samuel Chase, one of the associate justices,
presided, and Gunning Bedford, district judge, was associated with him.
Judge Chase, as usual, delivered a charge to the grand jury, on the
first day of the term. The grand jury, after hearing the charge, retired
to their chamber; after remaining there for some time, they returned
into court, and on being asked whether they had found any bills, or
had any presentments to make, they answered they had found no bills
of indictment, and had no presentments to make. After receiving this
answer, Judge Chase proceeded to observe, as nearly as I can recollect,
addressing himself to the grand jury, that he had been informed, or
heard, that a highly seditious temper had manifested itself in the State
of Delaware among a certain class of people, especially in Newcastle
County, and more especially in the town of Wilmington, where lived a
most seditious printer, unrestrained by any principle of virtue, and
regardless of social order; that the name of this printer was ----; the
judge here paused, and said, perhaps it might be assuming, or taking upon
himself too much to mention the name of this person; but, gentlemen, it
becomes your special duty, and you must inquire diligently into this
matter. Several of the jurors, I believe, made a request to the Court
to dismiss them, and assigned as the reasons for their request, that
some of them were farmers, and, as it was about the time of harvest,
they were anxious to be on their farms. The judge observed that the
business to which he had called their attention was of a very urgent and
pressing nature, and must be attended to; that he could not, therefore,
discharge them before the next day, when further information should
be communicated to them on the subject he had referred to. The judge
then addressing himself to me as the district attorney, asked me, as I
believe is usual on such occasions, whether I had any criminal charges
to submit to the grand jury? I said that none such had yet occurred,
and I believed none were likely to occur during that term. Judge Chase,
continuing his address to me, observed, You might, by prosecuting proper
researches, make some discoveries. Have you not heard of some persons
in this State who have been guilty of libelling the Government, or the
administration of the Government of the United States? I am told, and
the general circulation of the report induces me to believe it, that
there is a certain printer in the town of Wilmington who publishes a most
scandalous newspaper; but it will not do to mention names. Have you not
two printers in that town? I answered that I believed there were. Judge
Chase observed, that one of them was a seditious printer, adding, he
shall be taken notice of, and it is your duty, Mr. Attorney, to examine
unremittingly and minutely into affairs of that nature; times like these
require that this seditious temper or spirit, which pervades too many of
our presses, should be discouraged or repressed. Can you not find a file
of these newspapers between this time and to-morrow morning, and examine
them, and discover whether this printer is not guilty of libelling the
Government of the United States? This, I say, sir, must be done; I think
it is your duty. I observed, as this subject was pressed by the honorable
judge, I believed I was acquainted with the duties of my office, and was
willing to discharge them. I mentioned that I had not in my possession
the papers alluded to by the judge, nor had read them; but that if a
file of them were procured and handed to me, I had no objection to
examine them, and communicate with the grand jury on the subject. The
judge then said he was satisfied, and, turning to the jury, observed,
that he could not discharge them, however inconvenient their stay; they
must attend the ensuing day, at the usual hour. The judge then directed
that a file of the papers should be procured for me. I understood him to
mean the paper called the Mirror of the Times and General Advertiser,
though I do not recollect to have heard the title of the paper mentioned
during the proceedings. A file of those papers was brought to me in the
afternoon, after the adjournment of the Court; by whom they were brought
I do not recollect. I examined them, but in a very cursory manner, as I
was very much interrupted by persons calling upon me. I did not discover
during the course of this examination, any libellous matter coming within
the provisions of the sedition act.
According to what I understood to be the wish of the judge, I sent this
file of papers to the grand jury. Soon after the meeting of the Court on
the second day, and at the request of the grand jury, I attended them
in their room. On entering, the foreman of the jury addressed me, and
directed my attention to a paragraph in a publication contained in the
Mirror of the 21st June, 1800, republished from the Aurora, reflecting,
perhaps in strong and pointed language, on the former conduct of Judge
Chase. He observed that there was a difference of opinion among the
jurors as to the nature of the paragraph--some doubted whether it was
a libel or not, and, if libellous, whether they had a right to present
it to the circuit court. I observed that it was not necessary for
me to be very particular in my opinion of the publication, as I did
not consider it as coming under the sedition law, though it might be
considered as an offence at common law, because Judge Chase had decided
that the circuit court could not take cognizance of cases arising at
common law. I returned into court. After some time, the file was placed
before the judge. Judge Chase asked me what had been done, and whether
the grand jury had made any discoveries of libellous matter? I answered
none, unless it were the paragraph which related to Judge Chase, which
I showed him, observing that it did not appear to me to come under the
sedition law. Judge Chase acquiesced, and the business passed over on his
part in a very polite and affable manner. I do not recollect any thing
further to have passed. I have, however, an indistinct recollection of
a conversation between Judge Chase and myself, in the room of a tavern,
before we went into court, in which I understood him to have made a
general declaration of hostility against seditious printers.
_James Lea, affirmed._
Mr. Rodney. Please relate to the Court the occurrences which took place
at a circuit court of the United States at Newcastle, and whether you
were summoned as a grand juror at that court.
Mr. Lea. I was summoned by the marshal of the district of Delaware as
a grand juror at the circuit court held in the month of June, 1800. I
attended agreeably to that summons, and was qualified as a juror. After
receiving a charge from Judge Chase, we retired into our room, and
remained there for some time. There appearing to be no business for us,
we returned into our box. The usual question was put to us, whether we
had found any bills? We said that we had not. After some time, Judge
Chase addressed the grand jury, and observed that a very seditious
disposition had manifested itself in the State of Delaware, in the
county of Newcastle, and particularly in the town of Wilmington; that
a seditious printer lived in that place, who edited a paper called the
Mirror of the Times and the General Advertiser, who was in the habit of
libelling the Government of the United States, and that his name was
----, he said he would not mention his name, but that it was our duty
to inquire if any seditious publications had been made; that he would
not discharge us that day, nor until we had made the inquiry. Several of
the jurors addressed the judge for leave to return home, stating that
they were farmers, and were extremely anxious to be on their farms,
as it was harvest time. Some conversation passed between Judge Chase
and the attorney for the district, after which he said he would not
discharge us until the next day. We returned the next day into court,
and after sitting some time in our box, we retired to the jury room. A
file of newspapers was produced by some persons, and we examined them. We
found nothing in them of a libellous nature, in our opinion, excepting
something relative to Judge Chase, which some of the jury thought came
under the sedition law. We sent for the attorney of the district to
inform us as to the nature of the paragraph. He told us it did not come
under the sedition law. We went into the jury box, when a conversation
of some length took place between Judge Chase and the attorney of the
district, after which we were discharged.
_John Montgomery, sworn._
Mr. Randolph. The subject on which it is understood you are capable of
giving some information to the Court is the conduct of Judge Chase, at a
circuit court of the United States, held for the district of Maryland at
Baltimore, in May, 1803, or about that time.
Mr. Montgomery. The point, I presume, on which I am called to give
testimony, relates to a charge to a grand jury delivered by Judge Chase,
at a circuit court where he presided, and Judge Winchester was associated
with him. It will not, from the nature of the subject, be expected that
I shall be able to detail, in the precise language of the judge, the
whole of the charge which was delivered in 1803 at the May term. Though
not one of the bar, I was present at the court, and took a chair among
the gentlemen of the bar. After the grand jury were impanelled, Judge
Chase addressed them. He appeared to address them from a written paper
that lay before him. He proceeded in the usual manner to charge the jury
as to the duties expected to be performed by them. After he had thus far
proceeded in his charge, he mentioned, that before the jury retired to
their chamber, he would make some observations, and that they would be
considered as flowing from a wish for the happiness or welfare of the
community. He stated that it was important that the people should be
fully informed, particularly at such a crisis; that falsehood was more
easily disseminated than truth; and that the latter was reluctantly
attended to, when opposed to popular prejudice. I cannot pretend to
state the sentiments delivered by the judge, in the order in which they
were delivered. I can undertake to state, from my recollection, the
substance of those he delivered. To the best of my recollection, the
judge stated that the Administration was weak, relaxed, and inadequate to
the duties devolved on it; and that its acts proceeded not from a view
to promote the general happiness, but from a desire for the continuance
of unfairly-acquired power. The language _unfairly-acquired power_ made
a strong impression on my mind at the time; and when the judge called
the attention of the jury to the observations he was about to make, I
was prepared to expect something extraordinary from him, as I was at
Annapolis when he pronounced the valedictory address which Mr. Mason, in
his testimony, took occasion to mention. The judge stated the violation
of the constitution that had taken place by the act of Congress repealing
the judiciary act of 1800, and the consequent removal of sixteen judges;
that it had made a violent attack on the independence of the Judiciary.
He also found fault with a law passed by the Legislature of Maryland
in 1800, the effect of which was the removal of all the judges on the
county-court establishment. He stated that those acts were a severe blow
against the independence of the Judiciary. He stated, that since the
year 1776, he had been an advocate for a representative or republican
form of government; that it was his wish that freemen should be governed
by representatives chosen by that class of citizens who had a property
in, a common interest with, and an attachment to, the community. The
language might have been in the words of our constitution. He found fault
with the law passed by the Legislature of Maryland, which he styled
“The Universal-suffrage Law.” He stated that that also affected the
independence of the Judiciary, and to the best of my recollection, he
explained his ideas in this manner: that every free, white male citizen,
in the language of the constitution, having the qualification of age
and residence, though he had not a property in, an interest with, and
an attachment to, the community, being suffered to choose those who
constituted the Legislature, and the Judiciary being dependent on the
Legislature for their support and continuance in office, few characters
of integrity and ability, who are competent to discharge the duties of
judges, would be found to accept appointments held by such a tenure. He
stated that these measures were destructive of the happiness and welfare
of the community; that they would have a tendency to sink our Republican
Government into what he called a _Mobocracy_--the worst of all possible
governments. At the close of the judge’s charge, he, in an impressive
manner, called on the jury to pause, to reflect, and when they returned
to their homes, to use their endeavors to prevent these impending evils,
and save their country. He said that the people had been misled by
misrepresentation, falsehood, art, and cunning; that, by correcting these
errors, the threatened evils might be prevented--or words to that effect.
_Samuel H. Smith, sworn._
Mr. Nicholson. Please to state what you know of the charge delivered by
Judge Chase at Baltimore.
Mr. Smith. The charge of Judge Chase having been published, I did not
expect to be called upon to state in detail its general contents;
supposing that the only inquiry made would be on the correspondence of
my recollection with the contents of the published charge. I do not know
that I should be able, under these circumstances, to give a particular
statement, from memory, of its contents. On the evening subsequent to the
delivery of the charge, I committed to paper the most important features
of it, which were published in the National Intelligencer, and which form
part of the printed testimony received by the committee of inquiry. If I
could be indulged with access to it, I should be enabled to state more
correctly my knowledge of the charge.
[Mr. Smith here, with permission, read the following, extracted from the
National Intelligencer of May 20, 1803:--
“After a definition of the offences cognizable by the grand jury, Judge
Chase said he hoped he should be pardoned for making a few additional
observations. He had, he remarked, been uniformly attached to a free
republican government, and had actively participated in our revolutionary
struggle to obtain it. He still remained warmly attached to the
principles of government then established. Since that period, however,
certain opinions had sprung up which threatened with ruin the fair fabric
then raised. It had been contended that all men had equal rights derived
from nature, of which society could not rightfully deprive them. This
he denied. He could conceive of no rights in a state of nature, which
was in fact entirely a creature of the imagination, as there was no
condition of man in which he was not, under some modification, subject
to a particular leader or particular species of government. True liberty
did not, in his opinion, consist in the possession of equal rights, but
in the protection by the law of the person and property of every member
of society, however various the grade in society he filled. Nor did
it consist in the form of government in any country. A monarchy might
be free, and a republic in slavery. Wherever the laws protected the
person and property of every man, there liberty existed, whatever the
government was. Such, said he, is our present situation. But much I fear
that soon, very soon our situation will be changed. The great bulwark
of an independent judiciary has been broken down by the Legislature
of the United States, and a wound inflicted upon the liberties of the
people which nothing but their good sense can cure. Judge Chase here
went into an assertion of the right of the judiciary to decide on the
constitutionality of laws. He then adverted to the proceedings of the
Legislature of Maryland. He commented on the wisdom and patriotism of
those who had framed the constitution of that State. That wisdom and
patriotism had never conceived liberty to consist in every man possessing
equal political rights. To secure property, the right of suffrage
had been limited. The convention had not imagined, according to the
new doctrine, that property would be best protected by those who had
themselves no property. The great rampart established in the limitation
of suffrage was now demolished by the principle of universal suffrage
ingrafted in the constitution. In addition to this, a proposition was
now submitted, whose ratification depended upon the next Legislature and
which, if ratified, would destroy the independence and respectability
of the judiciary, and make the administration of justice dependent
upon legislative discretion. If this shall, in addition to that which
establishes universal suffrage, become part of the constitution, nothing
will remain that will be worth protecting. Instead of being ruled by a
regular and respectable government, we shall be governed by an ignorant
mobocracy. When he reflected on the ruinous effects of these measures,
he could not but blush at the degeneracy of sons, who destroyed the fair
fabric raised by the patriotism of their fathers.”]
President. Did you hear any reflections cast on the Administration?
Mr. Smith. I do not recollect any other beside those contained in the
statement I have read.
_John Stephen, sworn._
I was at Baltimore when the charge was delivered by Judge Chase. My
recollection of its contents is extremely vague. But, with regard to
some of it, it coincides with that of Mr. Montgomery, Mr. Mason, and Mr.
Smith. He spoke of the repeal of the judiciary law, and said that it
was injurious to the independence of the judges. He also mentioned the
general suffrage law as injurious; and said no man ought to be permitted
to vote unless he had a property in, a common interest with, and an
attachment to, the community; that the act violated this principle,
and would be attended with very injurious consequences; he denied the
doctrine of natural rights; and said that they were altogether derived
from convention; and at the end of the charge he exhorted the jury to use
their efforts to prevent the injury likely to result from the temper of
the times. I cannot say whether Judge Chase confined himself to a written
paper or not. He declared that the independence of the judiciary of the
United States had been injured by the repeal of the judiciary system;
and that the bill then pending before the Legislature of Maryland, if
adopted, would have the same effect upon the judiciary of that State.
Mr. Nicholson stated, that all the witnesses present on the part of the
prosecution had been examined; the managers would therefore proceed to
offer certain records; but, as several material witnesses were absent, he
hoped they would not be precluded from calling them, should they attend,
at a future stage of the trial.
Mr. Randolph offered in evidence a copy of the record in the case of J.
T. Callender; also in the case of Fries.
Mr. Randolph then stated that the Managers had submitted all the evidence
they were prepared to adduce. Whereupon the Court rose.
FRIDAY, February 15.
The Court was opened at 10 A. M.
_Present_: The Managers, accompanied by the House of Representatives in
Committee of the Whole: and Judge Chase attended by his counsel.
The evidence being closed on the part of the prosecution,
Mr HARPER, of counsel for the respondent, addressed the Court to this
effect:
Mr. President: We feel so strong a reliance on the justice, impartiality,
and discernment of this honorable Court, that nothing but an anxious
regard for the character and feelings of the honorable gentleman who
is the object of this prosecution, and a solicitude to remove even the
slightest imputation of impropriety or incorrectness that may rest on
his conduct, could induce us to occupy any portion of that time which we
know to be so precious, by the introduction of testimony on his part. We
believe the charges to be utterly unsupported by the testimony adduced on
the part of the prosecution; and had we no other object than a mere legal
acquittal, we should cheerfully rest the case on that testimony. But we
are aware that some part of the honorable judge’s conduct, though not
criminal nor punishable by impeachment, may, if left without explanation,
appear in an unfavorable light. We are prepared with testimony to give
this explanation; to show that, through all the transactions which form
the matter of this prosecution, he has been governed by the purest
motives, and that whatever errors he may have committed, are trivial in
themselves, are imputable to human infirmity alone, and were instantly
corrected by himself. This testimony we request the permission of this
honorable Court to produce. But a consciousness of the strong ground on
which we stand, and a recollection of the very important public business
which now presses on the attention of this honorable Court, in its
legislative capacity, have determined us to waive our right to a general
opening of our case; and to confine ourselves, in this stage of the
cause, to a brief statement of the points to which our testimony will be
directed.
On the first article, which relates to the conduct of Judge Chase in the
trial of John Fries for treason, we shall produce testimony to show,
that the opinion contained in the paper which the judge delivered to
the prisoner’s counsel was not only legal, but had been twice expressly
decided, and once admitted in the same court, and had before that trial
been laid down as a general principle of law, in a charge delivered to a
grand jury in the same court, by one of Judge Chase’s predecessors.
We shall show, said he, by the most indisputable testimony, that the
point of law respecting treason in levying war against the United States,
which was stated in the paper delivered to the counsel of Fries, had
been once informally decided by the same court, in a prior case, and
twice after solemn argument and full discussion, and that one of those
discussions was made in the case of John Fries himself, on an indictment
for the same offence. We shall show that Judge Chase’s predecessor had,
before counsel was heard and before an indictment was found, delivered
the same opinion in a charge to the grand jury. We shall proceed to prove
in a more particular manner the contents of the paper thus delivered to
the counsel. We shall produce the original paper itself; and shall prove
that delivered to the prisoner’s counsel to be a true copy of it; and we
shall conclude, by showing that when the counsel of Fries had refused to
proceed in his defence, and were informed by the judge that they might go
on, and conduct the case as they thought proper, he employed no menacing
expression, and uttered no such words as “proceed at the hazard of your
characters:” but merely informed them that they should be under no other
restriction but that which a regard to their professional character would
impose. That, far from threatening, he did all in his power to soothe;
and instead of restricting, gave the utmost latitude of indulgence.
Proceeding, then, to the second general head of accusation, the conduct
of the respondent relative to the trial of Callender, which furnishes the
matter of the second article, and embraces in the whole five articles,
we shall show that the copy of the “Prospect before Us,” which the
respondent carried with him to Richmond, was marked, not by him, but by
another person, without any view to a prosecution of the author, and
was given to him by that person without any request, on his part, as a
performance which might amuse him on the road.
As to the private conversation at Annapolis, we shall prove that it was a
mere jest between the respondent and the gentleman, who, after treasuring
it up for five years, has this day brought it forward to support an
impeachment; and whose recollection of it we shall show to be far less
accurate than ought to be required of a man, who, after so great a lapse
of time, adduces a private, confidential, and jocular conversation, to
aid a criminal prosecution.
We shall then follow Judge Chase to Richmond, where we shall show that,
far from having formed a corrupt determination to oppress Callender,
he felt solicitous for the escape of that unfortunate wretch; that,
far from entering into a combination with the marshal to pack a jury
for the conviction of Callender, Judge Chase expressed a wish that he
might be tried by men of that political party whose cause his book was
intended to support. We shall prove, by testimony not to be doubted,
that no conversation whatever took place between the judge and the
marshal, relative to striking any person from the panel, much less such
a conversation as has been sworn to by one witness for the prosecution.
We shall show that no panel of the jury actually summoned was formed,
until the opening of the Court on the day when the trial of Callender
was to have commenced; that it was completed in open court, and was
never seen by the judge. And we shall prove that the marshal, not by the
direction of the judge, from whom he was bound to receive no directions
on that subject, but with his entire approbation and according to his
advice, took the utmost pains to select a jury of the most impartial,
considerate, and respectable men; that, in this selection, no attention
was paid to party distinctions; and that if no persons of Callender’s
political opinion actually did serve on the jury, it was because, after
being summoned, they made excuses, which were admitted by the Court, or
refused to attend.
Thus much respecting the conduct of the judge previous to the trial.
Proceeding then to the particular matter of the second article, which
relates to the supposed rejection of John Basset’s application to serve
on the jury, we shall prove, more fully than we have already done, that
the nature of this application has been wholly misunderstood by the
witnesses on the part of the prosecution; that the juror did not offer an
excuse, or apply to be discharged, but merely suggested some scruples of
delicacy, and was willing to serve if those scruples were not sufficient
to constitute a legal disqualification. We shall fully corroborate the
testimony which the juror himself has given on this head, and shall show
clearly that his scruples were not of such a nature as to furnish a legal
or proper ground of objection to his competence as a juror.
As to the refusal of a continuance, which has been so much relied on as
a criminal violation of the law, with intent to oppress the party, we
shall prove, that although no legal grounds for a continuance were shown,
and it was therefore not in the power of the Court to grant it, Judge
Chase did offer to postpone the trial for a month or six weeks, in order
to accommodate Callender and his counsel, and to enable them to prepare;
an offer which they thought proper to reject. And we shall also show,
that when this motion for a continuance was made, the law of Virginia, by
which it is now contended that the Court ought to have been governed, was
not cited, nor even mentioned.
With respect to the conduct of Judge Chase towards Callender’s counsel,
we shall prove that it was free from any appearance of harshness, or
desire to intimidate, abash, or oppress; that the irritation which took
place proceeded from the counsel themselves, and that the conduct of the
Court was far more mild and forbearing than from those irritations could
have been expected. That every decision on the law was the joint opinion
of Judge Chase and his colleague, delivered after consultation between
them. That every interruption of the counsel arose from their pertinacity
in pressing points which had been decided, and on which propriety and
duty required them to be silent; and that after the respondent had
delivered the opinion of the Court on these points of law, he offered to
assist the counsel for the traverser in framing a case for the opinion of
all the judges of the Supreme Court, and thus to give them an opportunity
of correcting any errors which he and his colleague might have committed
in those decisions. And finally, we shall produce a witness who, having
attended the trial and taken down all the proceedings in short-hand, will
lay before this honorable Court an exact detail of all that passed.
Passing then to the matter of the fifth and sixth articles, we shall
prove, by a rule solemnly made by the Supreme Court of the United States,
that they never considered the State laws as regulating _process_, by
virtue of the act of Congress which is relied on in support of these
articles; but merely as governing the decision of rights acquired under
them, when such rights come into question in the courts of the United
States; that the practice in the courts of Virginia, under the State
law in question, has been and is conformable to our construction, and
not to that contended for on the other side. And as a proof how little
the recollection of men, even the most correct, can be relied on, in
cases where their feelings have been strongly excited, we shall produce
a record, in which the learned gentleman who, though very young, was
Attorney-General of Virginia in 1800, and who has delivered his testimony
with the greatest candor and propriety, did himself order a capias, on
a presentment in a case not capital. We shall produce evidence to prove
that the capias is the proper process, in all cases of presentments,
except those of petty offences, which are tried by the court, without
an indictment, and are punishable by fine only, but not imprisonment.
And to remove every possible doubt on this head of accusation, we shall
prove that when the presentment against Callender was made, and it
became necessary to issue process against him, Judge Chase applied to the
district attorney for information as to what was the proper process, who
answered, a capias; and that the capias, which was actually issued, was
drawn up by the clerk, inspected and approved by the district attorney,
and issued on his suggestion.
Respecting the transactions at Newcastle, in the State of Delaware,
which constitute the matter of the seventh article, we shall prove that
those offensive and improper expressions, which are attributed to the
respondent, relative to a seditious temper, in the State of Delaware,
and especially in the county of Newcastle and the town of Wilmington,
never were uttered by him; that the witnesses who have deposed to those
expressions are under a mistake; and that nothing was said or done by
Judge Chase on that occasion, but what he has admitted in his answer;
but what propriety justifies, and his duty required. To this end we
shall offer the testimony of persons who were in a situation to remark
every occurrence, to listen to every expression, and on whom such
expressions, had they been uttered, could not have failed to make a
strong impression. We shall then proceed to the charge delivered to the
grand jury at Baltimore, which furnishes the eighth and last ground of
accusation; and then we shall prove that the respondent said nothing of
a political nature to the jury, except that which he has stated in his
answer, and which he hopes to satisfy this honorable Court he had a right
to say, however indiscreet or unnecessary the exercise of that right in
this instance may have been. We shall produce a host of witnesses to
prove that he never uttered such sentiments as are attributed to him
by one witness, relative to the present Administration, its character,
views, and manner of obtaining its power; sentiments which he admits
would have been in the highest degree reprehensible on such an occasion;
that the charge which was delivered was read from a book; and that he
spoke nothing extemporary, as other witnesses for the prosecution have
supposed. And, finally, we shall produce this book to speak for itself;
shall prove it to be the same from which the charge was delivered; and
shall conclude with the examination of witnesses who stood round the
respondent while he read it, sat by his side, and almost looked over him
while he delivered the charge which it contains.
This, Mr. President, will be the general bearing of our testimony; which
we shall now, with the permission of this honorable Court, proceed to
adduce, in the order in which it has been stated.
_Samuel Ewing, sworn._
Mr. Hopkinson. Please to state whether you were in the court the day
subsequent to that on which the opinion was delivered by the Court, and
what you recollect occurred at that time?
Mr. Ewing. I attended at the court the day succeeding, and I remember
that Judges Chase and Peters, addressing Messrs. Lewis and Dallas, said
they were not to consider any thing which took place the day before as a
restriction on the course they wished to pursue; Judge Peters said that
every thing done yesterday was withdrawn. Judge Chase asked them if they
would go on in the cause; some conversation ensued, which ended in the
determination of Messrs. Lewis and Dallas not to proceed in the defence
of Fries. Judge Chase then made this observation: that if, after the
Court had expressed their opinion on the law, they persisted in stating
to the jury their sentiments on the law, they must do it at the hazard
of their legal reputations. I did not understand this as a menace, but
as a declaration to the counsel that they must do it on their standing
at the bar, and from a regard to their reputations. If I state any thing
further, it will only be a recapitulation of the testimony already given.
_Edward J. Coale, sworn._
Mr. Hopkinson. Will you examine that paper, and say what you know
respecting it?
Mr. Coale. It is a copy of the paper handed down by Judge Chase on the
trial of Fries, made at the instance of Judge Chase, from a paper in
his handwriting; there were some words in the original which I could
not ascertain: I left blanks for them, and they were filled up by Judge
Chase; the other parts are written by me. It was made out before the
trial of Fries. When in the office of Judge Chase, I was frequently in
the habit of transcribing papers from his handwriting. After I left him
I went to Philadelphia, and lived there when Fries was tried. The judge
occasionally, during my residence there, sent for me to transcribe his
opinions; and on that occasion he called on me to transcribe this paper
from the original handwriting of himself.
_William Meredith, sworn._
Mr. Hopkinson. Were you present at the trial of Fries?
Mr. Meredith. On the 22d day of April, 1800, I went to the court house
for the purpose of attending the trial. It was rather at a late hour;
I think after eleven o’clock before I reached the court house. I met
several persons coming from the court room; I thought therefore that the
Court had adjourned, but not seeing any gentlemen of the bar, or the
judges, I went on; when I came into court, I saw Judge Chase holding a
paper in his hand, and he said that the Court had with great deliberation
considered the overt acts in the indictment against Fries, that they
had made up their minds on the extent of the constitutional definition
of treason, and that to prevent their being misunderstood, they had
committed their opinion to writing, one copy of which was intended to be
given to the district attorney, another to the counsel for the prisoner,
and a third to be given to the jury; perhaps something else might have
been said, but I do not recollect it. The paper was then thrown down by
him to the bar, and a sentiment of this kind expressed by Judge Chase:
that this opinion was not intended by the Court to prevent the counsel
from proceeding in the usual manner. I felt a desire to take a copy of
the paper. I do not recollect whether more than one was thrown down. I
had not, however, an opportunity of doing it. The paper was so fully
occupied till the adjournment of the Court, that although I made two or
three attempts to obtain it, I could not succeed. The Court adjourned a
short time afterwards. After I went home I recollect that an application
was made to me by the clerk of the court to return the copy, which he
understood I had taken. I informed him I had not taken a copy. On the
following day I was in the court room at the opening of the Court. Fries
was put to the bar, and the judge then inquired whether the counsel were
ready to proceed on the trial. I remember Mr. Lewis addressing himself to
the Court, and objecting to proceed in the defence, because the counsel
had been restrained by the Court from proceeding in the manner which
they deemed most beneficial to their client. I remember also that Judge
Chase told him that he ought not to refer to the opinion which had been
delivered on the preceding day; that the counsel were not to be bound
by that opinion, as it had been withdrawn. Mr. Lewis referring to that
opinion, however, considered it as the formed and decided opinion of
the Court, and that although the Court had withdrawn it, it still would
have an operation upon their minds; that while the Court was under its
influence, they could not expect to be heard in any of their arguments
with effect. Judge Peters replied that the opinion was withdrawn, and I
think Judge Chase repeated the opinion before expressed, that the counsel
were not to be bound by that opinion, might enter fully into the case,
and argue as well on the law as on the fact before the jury. I recollect
Mr. Lewis stating to the Court his opinion of the appositeness of cases
decided at common law in England. I remember Judge Chase expressing his
opinion and belief that they were perfectly inapplicable; and afterwards
remarking, that if, however, the counsel would go on, it was not the
intention of the Court to circumscribe them, or to take from the jury
the decision of the law as well as the fact. He further added, that the
counsel might manage the defence in such way as they thought proper,
having a regard to their own characters. I am the more particular and
positive of these expressions, because very shortly after the trial I
made a summary of the proceedings. I find it stated as coming from the
mouth of Judge Chase, and that he repeated that the counsel for the
prisoner might go on in their own way, having a regard to their own
characters. Judge Peters made a remark which I thought was calculated
to put the counsel into good humor, but they persisted in their refusal
to proceed. Thus far the Court manifested, in my opinion, a desire that
the cause might progress, and a persuasive and conciliatory temper; but
Mr. Lewis having again decidedly said that he would not proceed, Judge
Chase said, if you suppose by conduct like this to put the Court into
a difficulty, you are mistaken. After a pause, Judge Chase addressed
himself to the prisoner, and asked him if he was ready to proceed on his
trial, or whether he would have other counsel assigned to him. Fries
replied he did not know what was best for him to do, but he would leave
his case to the Court. Mr. Rawle stated that from the peculiarity of
the circumstances of the case, and the prisoner being left without the
assistance of counsel, his wish was that the trial might be postponed
for a day, and the postponement took place by order of the Court. The
following morning when the Court was assembled, Fries was again put to
the bar, and Judge Chase inquired of him whether he wished the Court to
assign him counsel? His reply was, that he would trust himself to the
Court and jury. Judge Chase replied, Then by the blessing of God the
Court will be your counsel, and will do you as much justice as could be
done by the counsel that were assigned you, or nearly in those words. The
trial proceeded, but I was not present during the whole of it.
_Luther Martin, sworn._
Mr. Harper. Did you furnish Judge Chase with a copy of the book, entitled
the “Prospect before Us,” and at what time did you furnish him with it?
Mr. Martin. It is not a pleasing thing for me to be a witness on this
point, as I may be considered as a party concerned, and especially from
being one of the counsel for Judge Chase. Yet, as it is required from me,
I will proceed to state what I know. When I was in New York, I observed
in a newspaper which I took up at a barber’s shop an advertisement for
the sale of the “Prospect before Us.” I mentioned it to Judge Washington,
and he sent his servant to procure a copy, and I desired him to purchase
two copies. I read it, and as was usual with me with respect to books any
wise interesting, I scored such passages as were remarkable either for
their merit or demerit, and I did score a great portion of the book. But
I did not score them with the least idea of an indictment being founded
upon them. When I scored the book I did not know that Judge Chase was
going on the circuit of Virginia. My scoring was for my own amusement,
and for that of my friends. Afterwards I saw Judge Chase. I asked him if
he was going down to Richmond; he answered yes. I asked if he had seen
the book called the “Prospect before Us?” He said he had not. I then told
him, I will put it into your hands; you may amuse yourself with it as you
are going down, and make what use of it you please. There was a great
deal more scored than was contained in the indictment. I most solemnly
declare that I had no view to a prosecution in scoring it; though I have
no hesitation in saying that in common with every worthy inhabitant of
America I detested the book.
Mr. Nicholson. What do you mean by detest?
Mr. Martin. I am ready candidly to acknowledge that I did think it a
book that ought to be prosecuted; and I did not think that Judge Chase
would have an opportunity of seeing it unless I gave him a copy of it.
Having since heard it suggested that I had some share in drawing up the
indictment against Callender, I most solemnly declare I did not put pen
to paper on the subject.
_James Winchester, sworn._
Mr. Harper. Will you please to state whether you were in Annapolis in
1800, in court with Judge Chase, and Mr. John T. Mason, and what was the
conversation which then took place?
Mr. Winchester. I attended a circuit court held at Annapolis in 1800.
I do not recollect either the day the Court commenced or ended. I
think on the last day of the term sentence was passed on ---- Saunders
for stealing, in his character of postmaster, the contents of a
letter. A crowd gathered round the door, and retarded our passage
out of court. I do not remember what persons remained; but Mr. Mason
came up and addressed himself to Judge Chase. My recollection is at
best but imperfect, and of this conversation necessarily indistinct.
In the account of it, therefore, I shall use my own language. I may
occasionally use the language of Judge Chase and Mr. Mason. According to
the impression on my mind the conversation commenced in this way: Judge
Chase had delivered a charge to the grand jury. Mr. Mason came up, and
in a laughing manner jocosely asked, In what light are we to consider
the charge, as moral, political, judicial, or religious? These are the
words, I believe, but of this I am not certain. The judge replied in the
same style and manner, I believe, that it was a little of all. I cannot
be certain, but I think Mr. Mason intimated to the judge that he would
not deliver such sentiments in Virginia. It appeared to me that the
language of Mr. Mason conveyed to Judge Chase the idea that he was afraid
to deliver such sentiments in Virginia, though I am not myself confident
that such was his meaning. The judge replied that he would, and that he
would at all times and in all places execute the laws in the manner he
had declared.
_William Marshall, sworn._
Mr. Harper. Inform the Court how soon you saw Judge Chase after his
arrival at Richmond, what passed between you, &c.
Mr. Marshall. Judge Chase arrived in Richmond, but whether on the 21st
or 22d of May, I do not recollect; but my impression is that it was
Tuesday. I waited on him, as was usual with me, and gave him information
respecting the state of the docket. The associate judge did not attend
on the 22d, when the Court was opened and the grand jury received their
charge. They went to their room, and did not return till Saturday the
24th of May, when they returned a presentment against James T. Callender,
which I have. [The original presentment was produced by the witness,
read, and delivered to the Secretary.]
As soon as I had read the presentment, at the request of the attorney of
the district the jury were taken back to their chamber, and progress was
made in preparing the indictment. There was some conversation between
Judge Chase and Mr. Nelson, which lasted for a few minutes. Judge Chase
inquired what was the proper process on the presentment. The answer
which the district attorney made, was, that he supposed a capias was the
proper process. I recollect that Judge Chase said something of a bench
warrant, which was a practice unknown to us. Judge Chase asked me to draw
the warrant. I said I could not. He then said he would endeavor to draw
it. Afterwards Judge Chase desired the district attorney to draw out the
form of a capias; the judge said he would draw one himself, and that I
might draw out another; and he said he would take the most approved of
the three. I recollect mine was drawn first; but whether before Judge
Chase and Mr. Nelson had finished theirs, I do not recollect. On looking
over mine, he said he was better satisfied with mine than his own; and he
requested me to sign, seal, and deliver it to the marshal.
[Mr. Marshall here produced and read the original capias.]
On Saturday the 24th of May, in the afternoon, the grand jury brought
in the indictment. I have taken these circumstances from a copy of the
minutes of my office, which, if the Court wish to see, I can produce,
as I have them with me. Judge Chase alone formed the Court from the 22d
to the 29th of May, inclusive. On the 27th of May the marshal brought
Callender into court, Judge Chase being at that time the only member of
the Court. A chair was handed to him, and he remained in court while the
Court proceeded with the docket in the usual way, until near evening,
when Judge Chase observed that as the traverser was in court, he might
perhaps have some application to make. I do not recollect whether the
counsel afterwards employed for the defence of Callender were then in
court; but if they were, they made no observations. But Mr. Meriwether
Jones, with whom Callender resided, said that Callender was not then
prepared to make any application; but that perhaps to-morrow he would
move a continuance. Then Judge Chase applied to Callender, and asked
if he could give bail. Mr. Jones replied that he could give bail in a
moderate sum. Judge Chase asked Callender what were his circumstances;
that in fixing the sum, he would be governed by that circumstance.
Callender said they were nearly equal. The judge repeated the question,
and then Callender said he was indebted about two hundred dollars, and
there was about as much due to him which he expected to receive; and
therefore he did not consider himself worth any thing. Judge Chase then
asked if he could give bail, himself in two hundred dollars, and another
in a like sum. The reply made by Mr. Callender or Mr. Jones was, that
he could find bail to that amount; and he accordingly gave bail. On
the 28th May, an application was made by Mr. Hay; this was the first
instance in which Mr. Callender took any steps for his defence. Mr. Hay
stated that he was not well acquainted with the practice in such cases;
that he had an affidavit, of a general nature, stating the impossibility
of going into the trial, with any prospect of success, without the
attendance of a number of witnesses who lived at a great distance. Mr.
Hay also inquired whether a general affidavit was sufficient, or whether
a special affidavit, stating the names of the witnesses and the facts
they were expected to prove, would be required. Judge Chase said that
the strict practice of the law required a special affidavit; but they
might take till to-morrow to prepare a special affidavit, submitting it
to their discretion to manage the cause as they thought proper. I beg
pardon for being a little too hasty in my narrative. When Mr. Hay offered
his motion for a continuance, the Court said that before they could
hear the motion it was necessary that the traverser should plead to the
indictment. For if he pleaded guilty, there would be no necessity for an
application. Mr. Hay assured the Court that the traverser would not plead
guilty. Mr. Callender was arraigned and he plead not guilty; and then the
conversation which I have stated took place. The reply of Judge Chase
was, after a general affidavit is made, it must be relied on, but you
may withdraw the general, and file a special affidavit. Nothing further
passed on the 28th.
On the 29th, in the morning, Mr. Hay produced a special affidavit; I
have the original here. It is stated therein, that there were a number
of witnesses, one from New Hampshire; one from Massachusetts; some from
Pennsylvania, and some from South Carolina, absent; who were material
witnesses for his defence; that there were also sundry documents to be
procured; and an essay written by Mr. Adams on canon and feudal law,
which the traverser supposed it important to have for his defence. Mr.
Hay, on these grounds, moved for a continuance to the next term, in a
pretty long speech. Judge Chase observed, that every person before he
made a publication, if he meant to justify it, ought to know the names
of his witnesses; and if he meant to justify it by documents, they ought
to have been within his reach. It was not to be presumed, indeed, that
he could calculate upon being able to procure his witnesses in a few
days; that in this case, it was alleged that one witness resided in New
Hampshire, which was a great way off. He said that the ordinary sittings
of the Court would be too short for him to obtain witnesses from so great
a distance. He said that the prisoner should have time, and he should
have a fair trial, but he could not allow him to the next term. He said
he might have two weeks--but that might be too short a time--you may
have three weeks, a month, nay, six weeks. We cannot sit so long, because
we are obliged to hold a court in the district of Delaware; but I will
adjourn this Court, to go to Delaware, and will return in six weeks. In
the course of the observations offered by Mr. Hay to the Court, as well
as I can recollect, he said, if the documents and witnesses were here, he
did not think he would be prepared during that term to investigate all
the facts, and the law arising on them; but he would be prepared against
the next term, if the Court would indulge him with a continuance. After
Judge Chase had made this offer of a postponement, I do not distinctly
remember that Mr. Hay or Mr. Nicholas made any reply. After a short
interval Judge Chase said, as they did not seem disposed to take the time
he had offered, the trial should come on within the time the testimony of
the witnesses residing in Virginia, deemed material, can be procured. He
asked the marshal what was the distance of the residences of Mr. Giles
and General Mason, and in what time they could conveniently come to
Richmond; and, whether his deputy marshals could go for them? The reply
of the marshal was, that his deputies were prepared to execute any orders
of the Court. Judge Chase then directed me to make out the subpœnas for
Monday, the 2d of June; and I issued subpœnas for Messrs. Giles, Mason,
and Taylor; but Colonel Taylor’s name does not appear in the affidavit.
The deputy marshals were directed to use all possible expedition in
serving the subpœnas: they were all returned executed on Monday the 2d of
June, endorsed with the hour of the day on which they were executed.
[Here Mr. Marshall offered the originals with the endorsements of the
time of service.]
On Monday, the 2d day of June, Colonel Taylor appeared in court. The
other witnesses were called, but they did not appear. A postponement was
asked by one of the gentlemen, for two hours, who stated that it had
rained on Sunday preceding, which might have impeded travelling, and it
was granted. Some time in the course of the day, Judge Chase observed he
might have till to-morrow, which was accepted.
On Tuesday morning, soon after the opening of the Court, the motion for
a continuance was renewed, founded on the affidavit of Callender, which
gave rise to the first motion. Judge Griffin was then in court, having
arrived on the 30th of May, and continued during the remainder of the
term. It was argued much at length, and received the same decision as on
the 29th. The marshal was then ordered to call the petit jury; twelve
jurors appeared; there were some objections which I do not precisely
recollect, to the panel of the jury; and a motion made to quash the
array. An argument was made and some authorities quoted; Judge Chase said
they were not to be relied on, and he asked for Coke upon Lyttleton. I
brought it from the library in the capitol. Judge Chase looked into it,
and said the array should not be quashed; but I do not know the principle
on which he decided. When the jury had all answered, the gentlemen
proposed to propound a question to the jurors as they came to the book.
I do not recollect what the question was, but Judge Chase said he would
propound the proper question himself. The question which Judge Chase
said it was proper to propound, was: “Have you formed and delivered
an opinion (for he said it was necessary to have delivered as well as
formed it) on the indictment?” The answer of the first juror was, that
he had never seen or heard the indictment, and could not say that he had
formed an opinion respecting it. Eight or nine of the jurors were asked
the same question, and gave a like answer. The gentlemen who defended
the traverser then said it was unnecessary to ask the other jurors that
question; the rest were sworn, and the trial proceeded. The course it
took was pretty lengthy, and I cannot state all the circumstances that
took place. I recollect that the testimony of Colonel Taylor was refused,
but I do not recollect the particular circumstances attending it.
Mr. Giles was on a jury in the circuit court, on, I think, the 27th
of May, the day Callender was brought into court by the marshal. When
Mr. Giles’s name was called, Judge Chase asked me whether that was the
celebrated Mr. Giles, member of Congress. I said that it was. He said
that he had never seen him before. Nothing more passed at that time.
In the evening I was at Judge Chase’s lodgings. He asked me whether I
supposed Mr. Giles would remain in Richmond until the trial of Callender.
I said it was uncertain, that it was not customary for Mr. Giles to
remain any length of time when he came to town. Judge Chase said he
wished he would remain, and serve in Callender’s case; nay, he wished
that Callender might be tried by a jury of his own politics. He said
that if his situation as a judge would permit him to drop a hint to
the marshal with respect to the jury, he would intimate his wish that
Callender should be thus tried; but, in his situation, it would be
improper for him to interfere with the duty of the marshal.
Mr. Harper. Inform the Court at what time, if any, you were at Judge
Chase’s chambers, when a certain Mr. John Heath was there; what passed,
and what did not pass.
Mr. Marshall. Judge Chase was, as he informed me, a total stranger in
Richmond, and had never been there until he held the Court in 1800. He
asked me if I would call upon him from time to time. When I knew he was
at home, I used to go in an evening, and spend an hour or two with him
at his lodgings. I also generally went in the morning, about an hour
before the meeting of the Court. I recollect about ten o’clock going to
Mr. Chase’s lodgings. I went, I think, but of this I am not positive,
with Mr. Randolph. I found Mr. Heath in Judge Chase’s chamber, or in the
passage. Mr. Heath was, I think, in the act of leaving the room; he had
his hat in his hand, and I met him either in his way out of the room, or
in the passage.
President. Can you state the day of the month?
Mr. Marshall. I cannot, but I think it was the day before Judge Griffin
arrived. I recollect very well, on that day Mr. D. Randolph and myself
walked up to the court room. I was surprised at seeing Mr. Heath at Judge
Chase’s, and asked Mr. Randolph what could have brought him there.
Mr. Harper. Was Mr. Heath in the act of going out when you entered?
Mr. Marshall. Yes, sir, he was on the floor. He had taken his leave, as I
supposed, of Judge Chase, and was either out of the room, or in the act
of coming out of it. I do not recollect positively whether Mr. Randolph
went with me. I recollect going with Mr. Randolph to court, and that
it was the usual practice of Mr. R. and myself to go to Judge Chase’s
chambers in the morning and attend him to court. I do not certainly
recollect whether that morning we went together to the judge’s chambers,
but I am positive we left the chamber together. The Court met generally
at eleven o’clock. I had something particular to do that morning, and it
was from ten to half-past ten when I went to the judge’s chambers; it may
have been about ten. The time I saw Mr. Heath must have been about ten
o’clock.
Mr. Harper. Did any conversation take place between the judge and Mr.
Heath while you were there?
Mr. Marshall. I believe I met Mr. Heath outside of the door. There was
not a word of conversation at any rate.
Mr. Harper. Did any incident take place respecting a paper handed from
Mr. Randolph to Mr. Chase?
Mr. Marshall. There did not.
Mr. Harper. Did you hear any thing about creatures called democrats?
Mr. Marshall. I never heard any thing pass between them. I never heard
the judge say any thing about the jury, except what occurred either
at the judge’s lodgings or at court, which I took to be instructions
to summon twenty-four jurors about twenty-five years of age, and
freeholders; that there should be enough to supply the juries required at
that court.
SATURDAY, February 16.
The Court was opened at 10 o’clock A. M.
_David M. Randolph, sworn._
Mr. Harper. Were you marshal of the United States for the district of
Virginia in 1800?
Answer. I was, sir.
Mr. Harper. Did you attend the circuit court held in May of that year, as
marshal?
A. I did, sir.
Mr. Harper. Did you summon the panel of the jury that served on the trial
of Callender?
A. I did.
Mr. Harper. Had you any conversation with Judge Chase on the forming that
panel?
A. I had no conversation with him on that subject. There was a
conversation offered to me by Judge Chase.
Mr. Harper. What was it?
A. The judge recommended to me that I should get persons generally from
the country; represented that they should be twenty-five years of age, of
fair characters, untainted by party prejudices.
Mr. Harper. Did any gentlemen summoned apply to you to be discharged?
A. Several. At the moment I received orders to have two juries ready by
Monday, I called on my two deputies, and desired them to take down, on
distinct papers, the names I mentioned to them. I observed that I chose
to take the responsibility on myself. While they were taking down the
names, I summoned several persons whose names were not put down till
Monday. On Monday, finding my two deputies had not summoned a sufficient
number, I went in quest of them. I found them at the end of the town,
in the act of executing my orders. Mr. Moseby, one of my deputies, was
standing with Colonel Vanderval, I think in conversation with him. I
called him across the street, and asked him how they succeeded. At this
time I saw my other deputy. They told me they wanted but one or two
jurors. I told them they must make haste. About this time I saw Mr.
Basset entering town on horseback. I told him that he had been crossed as
a grand juror for non-attendance; that he must serve as a petit juror,
which would give him an opportunity of offering his apology. I took
out my watch, and told him that I allowed him five minutes. We arrived
at the capitol, and my deputies there gave me their memorandums, from
which, and my own, I made up the list of the jury. Two gentlemen, Mr.
Lewis and Mr. Blakely, offered something like excuses. I looked at Mr.
Blakely, and said there was only one excuse that I would admit, to wit:
his being under twenty-five years of age. He said he was under that age,
and I dismissed him. Mr. Lewis said he might make the same excuse. I
said I doubted it, but I let him off. As I went into the passage, I met
Mr. Samuel Myers, who also desired to be let off. I told him I could not
and would not. He said I would excuse him for a reason which he could
assign. He whispered, and said that he was prejudiced against Callender.
I permitted him to go, but begged him to keep that reason to himself.
Another juror summoned, was very warm and importunate to be excused. I
told him there was only one ground on which I would excuse him. He asked
me what it was. I answered that if it applied to him he already knew it.
I begged him to go to the court, and he would learn what it was. He did
so. Colonel Harvie stopped me in the passage in a hasty manner, and with
great warmth and friendliness urged me to let him off. He said he was
sheriff of Henrico County. I said I knew it, but that I also knew that
his duties were generally performed by deputies. I did not let him off.
He applied to the Court, and was excused.
_John Marshall, sworn._
Mr. Harper. Please to inform this honorable Court whether you did, or did
not, on the part of Colonel Harvie, make an application for his discharge
from the jury, and on what ground that application was made?
Mr. Marshall. I was at the bar when Colonel Harvie, with whom I was
intimately acquainted, informed me that he was summoned on the jury.
Some conversation passed, in which he expressed his unwillingness to
serve, and stated that he was an unfit person; for that his mind was
completely made up, that he thought the (sedition) law unconstitutional,
and that, whatever the evidence might be, he should find the traverser
not guilty; and requested me, on that ground, to apply to the marshal
for his discharge. I told the marshal that Colonel Harvie was extremely
desirous of being discharged, and, on his discovering great repugnance
to his discharge, I informed him that he was predetermined, and that no
testimony could alter his opinion. The marshal said that Colonel Harvie
might make his excuse to the Court; he observed that he was watched, and
to prevent any charge of improper conduct from being brought against him,
he should not interfere in discharging any of the jurors who had been
summoned. I informed Colonel Harvie of this conversation, and it was
then agreed that I should apply to the Court for his discharge, upon the
ground of his being sheriff of Henrico County; that his attendance was
necessary, as that Court was then in session. I moved the discharge of
the juror on that ground, and he was discharged by the Court.
Mr. Randolph. Were you in court during a part of the trial, or during the
whole of the trial?
Mr. Marshall. I think I was there only during a part of the time.
Mr. Randolph. Did you observe any thing unusual in the conduct on the
part of the counsel towards the Court, or the Court towards the counsel,
and what?
Mr. Marshall. There were several circumstances that took place on that
trial, on the part both of the bar and the bench, which do not always
occur in trials. I would probably be better able to answer the question,
if it were made more determinate.
Mr. Randolph. Then I will make the question more particular by asking
whether the interruptions of counsel were much more frequent than usual?
Mr. Marshall. The counsel appeared to me to wish to bring before the jury
arguments to prove that the sedition law was unconstitutional, and Mr.
Chase said that that was not a proper question to go to the jury; and
whenever any attempt was made to bring that point before the jury, the
counsel for the traverser were stopped. After this there was an argument
commenced (I think) by Mr. Hay, but I do not recollect positively, to
prove to the judge that the opinion which he had given was not correct
in point of law, and that the constitutionality of the law ought to go
before the jury; whatever the argument was which Mr. Hay advanced, there
was something in it which Judge Chase did not believe to be law, and he
stopped him on that point. Mr. Hay still went on, and made some political
observations; Judge Chase stopped him again, and the collision ended,
by Mr. Hay sitting down, and folding up his papers as if he intended to
retire.
Mr. Randolph. There were many preliminary questions, such as, with
respect to the continuance of the cause, the admissibility of testimony,
&c. Did the interruptions take place on the part of the Court only when
the counsel pressed the point of the unconstitutionality of the sedition
law?
Mr. Marshall. I believe that it was only at those times, but I do not
recollect precisely. I do not remember correctly what passed between
the bench and the bar; but it appeared to me that whenever Judge Chase
thought the counsel incorrect in their points, he immediately told them
so, and stopped them short; but what were the particular expressions
that he used, my recollection is too indistinct to enable me to state
precisely; what I do state is merely from a general impression which
remains on my mind.
Mr. Randolph. Was there any misunderstanding between the counsel and the
Court, and what was the cause of that misunderstanding, or what was your
opinion as to the cause, or did you form one?
Mr. Marshall. It is impossible for me to assign the particular cause. It
began early in the proceedings and increased as the trial progressed. On
the part of the judge it seemed to be a disgust with regard to the mode
adopted by the traverser’s counsel, at least I speak as to the part which
Mr. Hay took on the trial, and it seemed to increase also with him as he
went on.
Mr. Randolph. When the Court decided the point that the jury had not a
right to decide upon the constitutionality of a law, did the counsel for
the traverser begin an argument to convince Judge Chase that the opinion
which he had delivered on that point was not well founded? Is it the
practice in courts when counsel object to the legality of an opinion
given by the Court, to hear the arguments of counsel against such opinion?
Mr. Marshall. If the counsel have not been already heard, it is usual
to hear them, in order that they may change or confirm the opinion of
the Court, when there is any doubt entertained. There is, however, no
positive rule on this subject, and the course pursued by the Court will
depend upon circumstances; where a judge believes that the point is
perfectly clear and settled, he will scarcely permit the question to be
agitated. However, it is considered as decorous on the part of the judge
to listen while the counsel abstain from urging unimportant arguments.
Mr. Randolph. In the circuit courts of the United States, after a court
is opened for any district, is it the practice of such courts to adjourn
over from time to time, in order to hold a court in another district in
the intermediate time, and then to return back; or is not the uniform
practice to postpone causes when they cannot be conveniently tried, to
the next term?
Mr. Marshall. I can only speak of courts where I have attended, in which
the practice is, that the business of one term shall be gone through as
far as possible, before any other court is held.
Mr. Randolph. Was it ever the practice of any court, in which you have
practised or presided, to compel counsel to reduce to writing the
questions which they meant to propound to their witnesses?
Mr. Marshall. It has not been usual; but in cases of the kind, the
conduct of the Court will depend upon circumstances. If a question
relates to a point of the law, and is understood to be an important
question, it might be proper to require that it be reduced to writing.
Unless there is some special reason which appears to the Court, or on the
request of the adverse counsel, questions are not commonly reduced to
writing, but when there is a special reason in the mind of the Court, or
it is required by the opposite counsel, questions may be directed to be
committed to writing.
Mr. Randolph. When these questions are reduced to writing, is it for a
special reason, after the Court have heard the question, and not before
they have been propounded?
Mr. Marshall. I never knew it requested that a question should be reduced
to writing in the first instance in the whole course of my practice.
Mr. Randolph. Did you ever, sir, in a criminal prosecution, know a
witness deemed inadmissible, because he could not go a particular length
in his testimony--because he could not narrate all the circumstances of
the crime charged in an indictment, or in the case of a libel; and could
only prove a part of a particular charge, and not the whole of it?
Mr. Marshall. I never did hear that objection made by the Court except in
this particular case.
[Some inquiry was here made relative to the above question put by
Mr. Randolph, and objected to by Mr. Cocke, which Mr. R. answered by
observing that he withdrew it.]
Mr. Harper. Please to inform this honorable Court, sir, whether you
recollect that Judge Chase during any part of the proceedings made an
offer to postpone the trial of Callender, and if you do, to what time?
Mr. Marshall. I recollect at the time a motion was made for the
continuance till the next term, that Judge Chase declared, as his
opinion, that it ought to be tried at the present term. A good deal of
conversation took place on the subject. The counsel for the traverser
stated several circumstances in favor of their client, particularly
relative to the absence of his witnesses; but the whole terminated at
that time by a postponement for a few days; so many days as, I thought
at the time, were sufficient for obtaining the witnesses residing in
Virginia. I do not now recollect what the time was, nor do I say it was
sufficient. I simply recollect that I thought it was. When the cause
came on again, there was no proposition that I recollect on the part of
the traverser’s counsel for a continuance, but a desire was expressed
of a postponement for a few hours in order to give their witnesses time
to arrive at Richmond, as it was possible they had been impeded by the
badness of the roads; a considerable quantity of rain having fallen the
preceding day. There was a declaration on the part of the Court that they
might take until the next day, and they went on to say they might have
a longer time, if they thought it was necessary, but the precise length
of time offered I do not recollect; but I do remember that they said the
trial must come on before the present term closed.
The President. Do you recollect whether the conduct of the judge on this
trial was tyrannical, overbearing, and oppressive?
Mr. Marshall. I will state the facts. The counsel for the traverser
persisted in arguing the question of the constitutionality of the
sedition law, in which they were constantly repressed by Judge Chase.
Judge Chase checked Mr. Hay whenever he came to that point, and after
having resisted repeated checks, Mr. Hay appeared to be determined to
abandon the cause, when he was desired by the judge to proceed with his
argument, and informed that he should not be interrupted thereafter. If
this is not considered tyrannical, oppressive, and overbearing, I know
nothing else that was so.
Mr. Randolph. Are you acquainted with Mr. Wirt; was he a young man at
that time; was he single, married, or a widower?
Mr. Marshall. I am pretty well acquainted with him; he is about thirty
years of age, and a widower.
_Edmund J. Lee, sworn._
Mr. Harper. Were you at the circuit court in the spring of 1800, held at
Richmond, at which Judge Chase presided?
Mr. Lee. I was not in court when Callender was presented by the grand
jury; but I was when application was made for a continuance, and I
remember that Judge Chase, on an application made for a continuance, on
account of the absence of some of the witnesses, informed the counsel
that he could not continue the cause, but if they would fix upon any
determinate time, within which they could obtain their witnesses, without
its going over to the next term, the Court would postpone the trial.
Judge Chase also added that he had no objection to postpone it for a
fortnight or a month; I am not certain whether he did not say he would
postpone it for a longer time, I do not know but he said for six weeks,
but he said positively he would not postpone it to the next term. He
added, if the counsel conceived they could obtain the evidence within the
time mentioned, they might have it.
_Robert Gamble, sworn._
Mr. Harper. Were you at the circuit court of the United States for the
Virginia district, in the month of May or June, 1800, held at Richmond?
Mr. Gamble. I was one of the jurors, sir, and I was in court when a
motion was made for continuing the cause of Callender to the next term.
Mr. Harper. Do you recollect whether an offer was made by the Court to
postpone that cause?
Mr. Gamble. Yes, sir; Judge Chase said he would postpone it for a week, a
fortnight, a month, or more, and I think he mentioned he would postpone
it for six weeks, or as long as the term would admit, without its going
over to the next term.
_Philip Gooch, sworn._
Mr. Harper. What did you observe relative to the conduct of the Court and
counsel on that day? State what happened.
Mr. Gooch. When Mr. Basset suggested to the Court his wish to be informed
whether it was their opinion that he was a proper person to serve on the
jury, because he had formed and expressed an opinion on the extracts
which he had seen, and declared that if correctly copied from the work
called “The Prospect before Us,” the author was within the pale of the
sedition law; on that suggestion, I recollect, the Court decided, and
laid it down as law, that he must not only have formed an opinion, but
delivered it also, and the judge gave some reasons why he must not
only have formed, but delivered an opinion. I think he said that if a
notorious murder was committed in the body of a county, which every
man believed ought to be punished with death, and had so formed his
opinion, it would in that case be impossible to get a jury to try such
an offender, if it was an objection that a man had formed an opinion. I
understood that he had consulted Judge Griffin on this point. The court
was very crowded, but I had obtained a situation just behind the judges,
and had an opportunity of hearing in some degree what passed between
them, though not distinctly. Mr. Basset was eventually sworn upon the
jury. The cause proceeded.
Mr. Wirt opened the cause on the part of the traverser; he made some
allusion to the Court’s prohibiting the mode of defence which the counsel
for the traverser had adopted, but he was interrupted by the Court, and
was told that the decision of the Court must be binding for the present;
that if they objected, they might file their bill of error, and it should
be allowed.
Mr. W. proceeded in the cause, and was endeavouring to show that the
sedition law was unconstitutional; the Court interrupted him, and told
him that what he had to say must be addressed to the Court, but if he
was going on that point, he must again be informed that the Court would
not suffer it to be urged. Mr. W. appeared to be in some agitation, but
continued his argument, and when he came up to that point a second time,
he was again interrupted by the Court. Mr. W. resumed his argument, and
said he was going on. Judge Chase again interrupted him and said, “No,
sir, you are not going on, I am going on; sit down.” I recollect, also,
after the judge had made some observations, Mr. W. again proceeded, and
having observed that as the jury had a right to consider the law, and as
the constitution was law, it followed syllogistically that the jury had
a right to decide on the constitutionality of a law. Judge Chase replied
to him, A _non sequitur_, sir, and, at the same time, made him a bow.
Whether these circumstances took place exactly in the order in which I
have mentioned them, I am not positive, but I believe they did. Mr. W.
sat down, and the judge delivered a lengthy opinion. He stated that the
counsel must argue the law before the Court, and not before the jury, for
it was not competent for the jury to decide that point, or that the jury
were competent to decide whether the sedition law embraced this case or
not, but that they were not competent to decide whether the sedition law
was constitutional or not, and that he would not suffer that point to be
argued.
Mr. Harper. What was the effect produced by the reply of Judge Chase to
Mr. Wirt’s syllogism, a _non sequitur_?
Mr. Gooch. It appeared to me as if it was intended to excite merriment;
and if it was so intended, it certainly had that effect, and the
same appeared to me to be the motive of the judge in adding the word
_punctuatim_ after the words _verbatim et literatim_. I thought these
circumstances were calculated to display his wit.
Mr. Harper. When the judge told Mr. Wirt to sit down, did you conceive
the conduct of the court to be rude and peremptory, or was there any
thing like it in his application of the term “young gentlemen?”
Mr. Gooch. I did not perceive any thing rude or intemperate in his
conduct, unless it can be inferred from the words themselves, when
he said, You show yourselves clever young gentlemen, but the law is,
nevertheless, not as you have stated it.
MONDAY, February 18.
_Gunning Bedford, sworn._
Mr. Harper. Please to state to the Court whether you were present in your
judicial character at a circuit court held at Wilmington in 1800, and
relate the circumstances which occurred.
A. I attended that Court on the 27th of June. Judge Chase presided.
I arrived in the morning about half an hour before Judge Chase. We
went into court about eleven o’clock. The grand jury was called and
impanelled. The judge delivered a charge: they retired to their box;
after an absence of not more than an hour they returned to the bar.
They were asked by the judge whether they had any bills or presentments
to make to the Court. They said they had none. The Court called on the
attorney of the district to say whether there was any business likely
to be brought forward. He replied that there was none. Some of the
grand jury then expressed a wish to be discharged. Judge Chase said it
was unusual for the Court to discharge the grand jury so early in the
session; it is not the practice in any circuit court in which I have
sat. He turned round to me, and said, Mr. Bedford, what is your usual
practice? I said it depended upon circumstances, and on the business
before the Court; that when the Court was satisfied there was nothing to
detain them they were discharged. Judge Chase then turned to the jury,
and observed, “But, gentlemen of the jury, I am informed that there is
conducted in this State (but I am only _informed_) a seditious newspaper,
the editor of which is in the practice of libelling and abusing the
Government. His name is ----, but perhaps I may do injustice to the man
by mentioning his name. Have you, gentlemen of the jury, ever turned your
attention to the subject?” It was answered no. “But,” resumed the judge,
“it is your duty to attend to things of this kind. I have given you in
charge the sedition act among other things. If there is any thing in what
is suggested to you, it is your duty to inquire into it.” He added, “It
is high time that this seditious printer should be corrected; you know
that the prosperity and happiness of the country depend upon it.” He then
turned to the attorney of the district, and said, Mr. Attorney, can you
find a file of those papers? He answered that he did not know. A person
in court offered to procure a file. The attorney then said, as a file was
found, he would look it over. Can you, said the judge, look it over, and
examine it by to-morrow at ten o’clock. Mr. Attorney said he would. Judge
Chase then turned to the grand jury, and said, Gentlemen, you must attend
to-morrow at ten o’clock. Other business was gone into, and the Court
adjourned about two o’clock.
On my way to Judge Chase’s lodgings, I said to him, My friend, I believe
you know not where you are; the people of this country are very much
opposed to the sedition law, and will not be pleased with what you said.
Judge Chase clapped his hand on my shoulders and replied, “My dear
Bedford, no matter where we are, or among whom we are, we must do our
duty.”
The next day we went into court about ten o’clock. The grand jury went to
their chamber, and I believe Mr. Read returned with them into court. They
were asked if they had any thing to offer to the Court; and the attorney
was called on again to state whether he had found any thing in the file
of a seditious nature. He had a file of the paper before him, and he
said he had found nothing that was a proper subject for the notice of the
jury, unless a piece relating to Judge Chase himself. The judge answered,
Take no notice of that, my shoulders are broad, and they are able to bear
it; but where there is a violation of a positive law of the United States
it is necessary to notice it.
_Nicholas Vandyke, sworn._
Mr. Harper. Please to state whether you were at the circuit court for
Delaware in the year 1800?
A. I attended the circuit court held in Newcastle on the 27th and 28th
of June, 1800. I was not present when the Court opened; but I think I
entered the court house while Judge Chase was delivering a charge to
the grand jury. After its delivery the grand jury retired; they were
absent a short time: and as well as I can recollect before and when they
returned, I was either out of the court house, or engaged in conversation
with some person out of the bar. I think so, as I have no recollection
of the question put to the grand jury, whether they had found any bills,
and that put to the district attorney. I entered the bar while there was
a pause, and silence prevailed. I recollect that the first circumstance
that attracted my attention was the observation of Judge Chase to the
grand jury, that since he had come among them, he had been credibly
informed that there was a seditious printer within the State, in the
habit of libelling the Government of the United States, and having
received this information, he thought it his duty to call the attention
of the grand jury to the subject. He appeared to me to be proceeding to
state the name of the printer; but he did not name him. He said that
might be doing injustice to the man, or that it was improper in him. I
cannot say which was the term he used. I think he then asked the district
attorney if there were not two printers in the State. He answered that
there were. There was then some conversation between the judge and the
district attorney. My impression was that it conveyed a request from
Judge Chase to the district attorney to inquire into the subject on which
he had previously spoken to the jury. Mr. Attorney said that he had not
seen the papers. The judge asked him whether he could not procure a file
of them. I do not recollect that the name of the printer was mentioned
then, or during the whole sittings of the Court. Some person at the bar
said a file could be procured. Judge Chase asked the attorney, if he
could make the inquiry by to-morrow at ten o’clock. About this time I
heard some observations made respecting the discharge of the grand jury
on that day. Some of the gentlemen said it was a busy season, that they
were farmers, and were desirous of returning to their homes. Judge Chase
replied that might be very true; but that the business of the public
was also important; it must be attended to: and therefore he could not
discharge them. I do not pretend to say I have pursued the language
used. I have only attempted to give my impression of the facts that
occurred.
_Archibald Hamilton, sworn._
Mr. Harper. Please inform the Court whether you were present at a circuit
court for Delaware in 1800?
A. I recollect that I was present on the 27th of June. I arrived about 10
o’clock, at which time Judge Chase was not there. Some time after, the
Court was formed, the grand jury was sworn, and Judge Chase delivered
a charge. Having retired for about an hour, the grand jury returned to
the bar. Judge Chase asked them if they had any bills or presentments
to make. Their reply was that they had not. Judge Chase then asked the
attorney of the district if he had no business to lay before them. He
said he had not. The jury requested to be discharged. Judge Chase said,
it was not usual to discharge them so early, some business might occur
during the course of the day. He told them he had been informed that
there was a printer who was guilty of libelling the Government of the
United States; his name is ----; here he stopped, and said, “Perhaps
I may commit myself, and do injustice to the man. Have you not two
printers?” The attorney said there were. Well, said Judge Chase, cannot
you find a file of the papers of the one I allude to? Mr. Read said he
did not take the papers, or that he had not a file. Some person then
observed that a file could be got at Mr. Crow’s. Judge Chase asked the
attorney if he could examine the papers by the next morning. Mr. Read
said, that under the directions of the Court, he conceived it to be his
duty, and he would do it.
On the second day the same questions, whether they had found any bills,
were put to the grand jury. They answered that they had not. Mr. Chase
asked the attorney of the district if he had found any thing in the
papers that required the interposition of the jury. He said that he had
found nothing which in his opinion came within the sedition law; but
there was a paragraph against his honor. Judge Chase said, that was not
what he alluded to. He was abused from one end of the continent to the
other; but his shoulders were broad enough to bear it.
_Samuel Moore, affirmed._
Mr. Harper. Were you in the circuit court held in Delaware in June, 1800,
when it met?
A. No, sir. I did attend early enough on the first day to hear the charge
given to the grand jury. I think I did not attend before twelve o’clock.
I attended as a juror. On the next day I attended early, and was in
the court house when the Court met. When the jury returned into court,
inquiry was made whether they had any bills or presentments to make. They
answered no. The Court then inquired of the attorney of the district
whether he had any business to lay before the grand jury. He said he had
not. While he was making this reply, he rose, and laid hold of a file of
newspapers, which I took to be the Mirror of the Times, and while he
was in the act of presenting it, he observed that he had not seen any
thing that in his opinion required notice, unless it were a publication
reflecting on Judge Chase, which did not appear to him to come under the
sedition law. Judge Chase answered, No, sir; they have abused me from
one end of the continent to the other; but it is the Government, and not
myself, that I wish protected from calumny. Immediately after the grand
jury were discharged.
_William H. Winder, sworn._
Mr. Harper. I will ask you whether you were in the circuit court of
the United States, held at Baltimore, in May, 1803? I will, however,
previously observe that it is not my intention to say or to prove that
the witness, when he deposed to certain facts, knew that they had not
passed. I mean only to impeach his correctness, and to infer that, as he
was angry, he gave to what he heard the coloring of his own feelings.
Mr. Winder. I was present at that court when it was opened, and the jury
impanelled, and I heard Judge Chase deliver his charge. After delivering
the general and usual charge to the grand jury he said he begged leave to
detain them a few minutes, while he made some general reflections on the
situation of public affairs. He commenced by laying down some abstract
opinions, stating that that Government was the most free and happy that
was the best administered; that a republic might be in slavery and a
monarchy free. He also drew some distinctions with regard to the doctrine
of equal rights, and said that the idea of perfect equality of rights,
more particularly such as had been broached in France, was fanciful and
untrue; that the only doctrine contended for with propriety was, the
equal protection of all classes from oppression. He commented on the
repeal of the judiciary system of the United States, and remarked that
it had a tendency to weaken the judiciary, and to render it dependent.
He then adverted to the laws of Maryland respecting the judiciary, as
tending to the same effect. One was a law for the repeal of the county
court system. He also alluded to the depending law for the abolition of
two of the courts of Maryland. He said something of the toil and labor
and patriotism of those who had raised the fair fabric, (constitution
of Maryland,) and said that he saw with regret some of their sons now
employed in destroying it. He also said that the tendency of the general
suffrage law was highly injurious, as, under it, a man was admitted to
full political rights, who might be here to-day and gone to-morrow.
_James Winchester, sworn._
Mr. Harper. Please, sir, to state to this Court your recollection
respecting a charge delivered by Judge Chase in the circuit court of
Maryland in May, 1803.
Mr. Winchester. As already stated, that Court sat in May, 1803, in a room
in Evans’s tavern. The Court and gentlemen of the bar sat round several
dining tables. I sat on the left of Judge Chase, and the jury were on
his right. He addressed a charge to them, the beginning of which was
in the usual style of such addresses. He then commenced what has been
called the political part of the charge, with some general observations
on the nature of government. He afterwards adverted to two measures
of the Legislature of Maryland; the first related to an alteration of
the constitution on the subject of suffrage; the other contemplated an
alteration in the judiciary. He commented on the injurious tendency of
the principle of universal suffrage, and deprecated the evil effects
it was likely to have. Incidental to these remarks, he adverted to the
repeal of the judiciary law of the United States. I say incidental, for
my impression was that his object was to show the dangerous consequences
that would result to the people of Maryland from a repeal of their
judiciary system, and to show that as the act of Congress had inflicted
a violent blow on the independence of the federal judiciary, it was
more necessary for the State of Maryland to preserve their judiciary
perfectly independent. I was very attentive to the charge for several
reasons. I regretted it as imprudent. I felt convinced that it would be
complained of; and I am very confident from my recollection, and from
the publications respecting it, which I afterwards perused, that all the
political observations of the judge related to the State of Maryland.
TUESDAY, February 20.
_Walter Dorsey, sworn._
Mr. Harper. Please to inform the Court whether you were at a circuit
court held at Baltimore in 1803.
Mr. Dorsey. I was.
Mr. Harper. Were you present when Judge Chase delivered a charge to the
grand jury?
Mr. Dorsey. I was.
Mr. Harper. Were you in such a situation as to hear that charge?
Mr. Dorsey. I was.
Mr. Harper. Were you near Mr. Montgomery?
Mr. Dorsey. I was; I think there was only one person between us.
Mr. Harper. Did you attend to the charge?
Mr. Dorsey. I attended to what is generally called the political part
of it, because it was novel, and contained speculations with respect to
government in general, and remarks on national and State laws.
Mr. Harper. Do you recollect any thing in it respecting the
Administration?
Mr. Dorsey. I do not. I recollect a part of it relating to the State
and national judiciary, and to universal suffrage. I did not hesitate
to state that it was an indiscreet thing; my attention was particularly
drawn to it by seeing in the room the editor of a newspaper, and from
expecting that it would be the subject of newspaper animadversion.
_John Purviance, sworn._
Mr. Harper. Please to inform this honorable Court whether you were
present at a circuit court held at Baltimore in May, 1803.
Mr. Purviance. I was.
Mr. Harper. State what happened on that occasion.
Mr. Purviance. I do not pretend to recollect every thing which occurred;
but as I attended to what Judge Chase said in his charge to the grand
jury, I think I have a pretty distinct recollection as to the manner in
which he delivered that address; he appeared to me to read the whole from
a written paper lying before him. I never expected that this inquiry
would have been made of me, and after such a lapse of time I can only
speak of the impressions now on my mind.
Mr. Harper. Do you recollect whether Judge Chase made any mention of the
present Federal Administration, and what was it?
Mr. Purviance. I have no recollection that he mentioned it, but as it was
identified with the repeal of the law for establishing the circuit court
of the United States; and so far as the Executive composed a part of the
Legislature, he may have mentioned the Administration.
Mr. Harper. Was there any particular mention or allusion to the Executive
of the United States?
Mr. Purviance. No, sir, nothing of the kind; I have endeavored to retrace
in my mind every thing which was said, and I have not the smallest
recollection that any remark was made upon the Executive Department of
the United States.
_Nicholas Brice, sworn._
Mr. Harper. Please to inform this honorable Court whether you were at a
circuit court held in May, 1803, when a charge was delivered by Judge
Chase to the grand jury.
Mr. Brice. I was there and attended to the charge very particularly.
Mr. Harper. Did he say any thing respecting the present Administration?
Mr. Brice. Not in the slightest manner, further than mentioning the
repeal of the judiciary law of the United States, which he mentioned
incidentally in the course of his observations on the alterations of the
judiciary system in the State of Maryland. One thing more I will add,
with respect to the advice which it is alleged he gave to the grand jury:
shortly after the charge was delivered, in talking over this subject with
Mr. Stephen, I recollect that I rather thought it was an inference drawn
from the charge, than any express advice of the Court on that point.
Indeed, I am pretty sure the words were not used.
_James P. Boyd, sworn._
Mr. Harper. Please to inform this honorable Court whether you were
present at the circuit court held in Baltimore in May, 1803, and what
occurred at that time.
Mr. Boyd. I was there, but I do not know whether I was there at the
opening of the Court; but I was there when the charge was delivered
to the grand jury. After Judge Chase had gone through that part of the
charge which is an instruction to the grand jury relative to the duties
of their office, he proceeded to make some further observations, to which
I paid particular attention because they were novel to me. I was under an
impression at the time that Judge Chase was watched.
Mr. Harper. Did that charge contain a sentiment like those you have
heard, that the present Administration was weak, or wicked, &c.?
Mr. Boyd. I have not a scintilla of recollection of a word of the kind,
no further than as an inference to be drawn from what was said in
relation to the repeal of the Judiciary law. I have, however, a faint
trace of the idea in my mind, not from my own recollection, but from
having repeatedly heard it stated that there was such a remark made in
the charge.
_William McMechin, sworn._
Mr. Harper. Inform this honorable Court whether you were present at the
circuit court held at Baltimore, in May, 1803.
Mr. McMechin. I was present and heard the charge delivered by Judge Chase
to the grand jury.
Mr. Harper. Have you any recollection of his having said any thing
against the present Administration?
Mr. McMechin. I have no recollection of any thing of the kind, either
that they were weak, or of their having unfairly acquired power; such an
idea was mentioned in no way, unless it be inferred from the remark on
the repeal of the law establishing the sixteen circuit judges.
_William S. Govane, sworn._
Mr. Harper. Were you at the circuit court of Baltimore in May, 1803?
Mr. Govane. I was, and heard the charge delivered by Judge Chase. The
room in which the Court was held was a long one, in a tavern; a range of
tables formed the bar, and the seats around were occupied by professional
gentlemen. I went to the bottom of the table, opposite to Judge Chase,
and directed my attention towards him. Whilst he was delivering his
charge he appeared to read it from a book, but generally ended the
sentences by looking towards the grand jury; except this circumstance, he
appeared to read the whole time.
Mr. Harper. Do you retain a distinct recollection of the substance of
what the judge said?
Mr. Govane. I think I do.
Mr. Harper. Do you remember any part containing animadversions on
the present Administration, such as that they were weak, feeble, or
incompetent?
Mr. Govane. I think no such words were used. If I could swear to a
fact negatively after such a lapse of time, I could swear that no such
expressions fell from the judge. He said that a Monarchy might be free,
and a Republic a tyranny; and then proceeded to define what a free
government was.
_William Cranch, sworn._
Mr. Harper. Were you present at the circuit court held at Baltimore in
1803?
Mr. Cranch. I was. The Court was held at Evan’s tavern, in Baltimore.
Judge Chase was seated in an arm-chair, at one end of a long table
placed before him. The grand jury were on his right, some sitting on
benches placed along the wall and others standing. I stood myself about
fifteen feet from the judge, who was sitting during the whole time he was
delivering his charge; he generally held the book in his hand.
Mr. Harper--(showing a book). Is that the book?
Mr. Cranch. He appeared to be reading from such a book.
Mr. Harper. Did he read the whole, and did he read constantly?
Mr. Cranch. He appeared to me to read the whole charge, but I did not
keep my eyes so constantly fixed upon him as to declare positively that
he did.
Mr. Harper. Were there variations in his manner of delivering the charge,
as if he was at one time reading and at another speaking _ex tempore_?
Mr. Cranch. He delivered some parts with more emphasis than others.
He often raised his eyes from the book, but I did not observe that
he repeated more than one sentence without recurring to the book; he
repeated no more than a man might repeat after running his eyes hastily
over a passage.
Mr. Harper. Did he raise his eyes for a longer time than a man might be
supposed to do who was reading a composition of his own?
Mr. Cranch. I do not think he did.
Mr. Harper. Do you recollect the latter part of the charge?
Mr. Cranch. I recollect more of the latter part than of the beginning,
because I paid more attention to the latter part.
Mr. Harper. Do you recollect any sentiments expressed relating to the
weakness of the present Administration, and that they were not employed
in promoting the public good, but in preserving ill-gotten power?
Mr. Cranch. No, sir, there was no such expression, as I recollect.
Mr. Harper. Was there any expression at all relative to the present
Administration?
Mr. Cranch. Not as an Administration, nor any thing alluding to the
Administration separate from the Government of the United States.
Mr. Harper. In what way was the Government alluded to?
Mr. Cranch. By alluding to the repeal of the act of February, 1801, for
the establishment of the circuit judges. I recollect no other measure
of the General Government which was alluded to, or any allusion to the
present Executive.
WEDNESDAY, February 20.
[_The testimony on both sides being closed, the argument of the case
began, Mr. Early, one of the managers, opening for the prosecution._]
Mr. EARLY.--The relative rights of judges and juries have at some periods
of judicial history been so little understood, and the limits of each so
indistinctly marked, that the benefits of the institution of jury trial
were left much at the mercy of _arbitrary and overbearing judges_. But it
was reserved for the honor of modern times to dissipate this uncertainty
so baneful to justice, and to fix down the establishment upon its only
proper foundation; that of the right to determine, without control, both
the law and the fact _in all criminal cases whatsoever_. This right
has now been so long practised upon in the United States, and may be
considered as so well established, that it is scarcely to be expected
we shall witness upon that point any difference of opinion. Still less
is it to be expected that we shall witness such difference, when we are
discussing principles which apply to cases capital. In such case it is
the glory of the laws of this country, that the offence of the accused
should be left exclusively to the judgment of those least liable to be
swayed by the weight of accusing influence. It is no part of my intention
to deny the right of judges to expound the law in charging juries. But it
may be safely affirmed that such right is the most delicate they possess,
and the exercise of which should be guarded by the utmost caution and
humanity.
The accused shall enjoy the right to a “trial by an _impartial_ jury.”
We charge the respondent with deliberately violating this important
provision of the constitution, in arresting from John Fries the privilege
of having his case heard and determined by an impartial jury; for that
the respondent took upon _himself_ substantially to decide the case by
prejudging the law applying thereto, at the same time accompanying the
opinion thus formed and thus delivered, by certain observations and
declarations calculated necessarily to create a prepossession against the
case of Fries in the minds of those who had been summoned to serve upon
the jury, thereby making them the reverse of impartial.
These were the acts of a man, who, from his own declarations, appears
to have well understood upon what _points the defence would turn_. It
was the act of a man, who, it appears, had been well informed of all
that passed at the previous trial of Fries; who knew that there was no
dispute as to facts, and that the whole of the defence depended upon the
discussion and determination of those very principles of law which he
had thus prejudged, and upon the application of those authorities which
he had thus excluded in the hearing and very presence of those who were
to pass upon the life and death of the accused. No argument had been
heard from counsel; no opportunity had been afforded to prove that the
offence committed did not amount to the crime charged; no defending
voice had been raised in behalf of the accused; but, without being
heard, and without having had any opportunity to be heard, his case was
adjudged _against_ him. I say, _adjudged against him without the chance
of being heard_. For surely the case was adjudged against him, when the
only point upon which it was defensible was determined against him, and
that determination publicly announced from the bench. That this was done
before the accused could possibly have had a chance of being heard, is
placed beyond contradiction by all the testimony. And that the judge knew
the point which he thus prejudged, to be the only ground upon which the
defence rested, is perfectly clear. For, from his own declarations at the
time of announcing the opinion, it appears that he was well acquainted
with all that had passed at the previous trial of Fries.
But, sir, we must look further into the progress of this transaction.
It was not enough that the poor trembling victim of judicial oppression
should thus have his dearest privileges snatched from him, by a
prejudication of his case; it was not enough that the impartiality
of those who were to compose his jury should be converted into a
prepossession against him, by the imposing authority of solemn
declarations from the bench; but the small remaining, darling hope of
life, was to be smothered by a preclusion of his counsel from arguing
the law to the jury. This fact, though sternly denied in the answer of
the respondent, has, nevertheless, been established in a manner which
must irresistibly force conviction upon the mind. Mr. Lewis affirms
it positively. Mr. Dallas confirms it in a manner peculiarly strong.
Not being himself present when the opinion was delivered to the bar,
he received from Mr. Lewis a statement of what had passed, and, in an
address to the Court afterwards, repeated distinctly this statement,
and particularly that part which attributed to the judge a declaration,
that, if the counsel had any thing to say upon the law, they must
address themselves to the Court, and not to the jury. To this statement
no reply was made by the Court, either correcting or denying it. Thus
stands the evidence in the affirmative. Opposed to this we have the
negative testimony of Messrs. Rawle, Tilghman, and Meredith, who have
no recollection of any such declaration. I address myself to those who
well know the difference between affirmative and negative testimony. I
address myself to those who well know the established rule in the law
of evidence, that the testimony of one affirmative witness countervails
that of many negative ones; and I am sure that I address myself to
those who must feel the complete coincidence of this rule with the
dictates of common sense. Upon this ground alone we might safely rest
our proposition; but, sir, we will not rest it here. It appears from the
testimony of the witnesses on both sides, that almost every observation
from the council to the Court, on the second day, was predicated
upon the idea that something had been said on the preceding day,
restrictive of their privileges. These observations, although addressed
to the Court, and carrying this feature prominent in their face, were
neither contradicted nor corrected by the Court. This was a strong
tacit admission of the correctness of the idea upon which they were
bottomed. But, sir, we have not only this tacit admission, but we have in
testimony, this strong and impressive declaration from Judge Chase, that
“the counsel might be heard in opposition to the opinion of the Court at
the hazard of their characters.”
But, Mr. President, we have the positive admission of the respondent,
in page 18 of his answer, that certain observations were made by him
condemning the use of common law authorities upon the doctrine of
treason, and also condemning authorities under the statute of treasons,
but prior to the English Revolution. [Here the passage was read.] By a
recurrence to page 22 of the answer, it will be found that the respondent
admits that these observations of his were made on the first day; yet,
sir, nothing of all this is remembered by Messrs. Rawle, Tilghman, or
Meredith. How light, then, how extremely light, must their bare want of
recollection weigh against the positive affirmative testimony of Messrs.
Lewis and Dallas!
Considering my position as uncontrovertibly established, I will proceed
to observe that the offence with which Fries stood charged, was the
highest possible offence which can be committed in a state of society.
The punishment annexed to its commission, was the highest possible
punishment known to our laws. The accused was, therefore, entitled to
every possible indulgence. In favor of life, not only every possible
ground should be occupied by counsel to the jury, but every possible
argument listened to and weighed with patience and forbearance; and it
should never be forgotten that Judge Chase had such a conduct set as an
example before him in a previous trial of the same case. Yes, sir, a
brother judge of his, who has since gone to the world of spirits, had set
him an example conspicuous for the purity of its excellence, and which
should have arrested his career in the commission of this cruel outrage
upon all humanity. But Judge Chase predetermines the law, then prohibits
the counsel from proving to the jury that the law was not as laid down.
This was, in effect, an extinguishment at once of the whole right of
jury trial. All the privileges and all the benefits of that institution
were swept at once from an American court of justice, and scarcely the
external form preserved. The law was predetermined by the judge, and the
accused was debarred from pleading it to the jury. Of what avail is it,
sir, that the jury should be made judges of law and of fact, when the law
is not permitted to be expounded to them? Of what avail is it that the
accused should have a trial by jury, when he is prevented from stating
and explaining to the jury the only grounds upon which his case is
defensible? The right to hear and determine facts is _not more the right_
of a jury, than the right to hear and determine the law. To deprive them,
then, of the privilege of hearing and determining the law, is as much a
violation of their rights, as to deprive them of the privilege of hearing
and determining facts. The right of the accused to be heard upon the
facts to the jury, is not more his right, than the right of being heard
upon the law to the jury. To deprive him, then, of the privilege of being
heard upon the law to the jury, is as much a violation of his rights, as
to deprive him of the privilege of being heard upon the facts to the jury.
The second, third, and fourth articles, exhibited by the House of
Representatives, charge the defendant with a course of conduct upon a
particular trial which affords many grounds of accusation. In this case
it is true no unfortunate individual was charged with an offence which
demanded his life as an expiation; yet, sir, there were other rights
involved equally sacred in the laws of a free country. The liberty
and the property of the accused were the price of a conviction. In
casting our eyes over the ground upon which the different scenes of the
transaction now about to be examined are spread, we are struck with
a feature not usual in the history of human concerns. It would seem
that even the restraint of appearances was no longer felt. We find the
respondent setting out with a conduct, which seemed to prove that the
fate of the accused was fixed. We find him pursuing a system of conduct
throughout, which wrested from the accused some of his established and
most valuable privileges. We find him endeavoring to heap shame and odium
on those who occupied the station of advocates, because they would not
tamely yield to his unwarrantable invasion of long-established rights.
Mr. President, notwithstanding the labored attempts made by the defendant
in his answer to exculpate himself from imputation in compelling Mr.
Basset to serve upon the jury, in the trial of Callender; yet, sir, I
must be permitted to say that those attempts appear to me to be only
the exertions of a mind conscious of impropriety, and seeking to impose
upon the understanding of others. The test adopted, by which to try the
impartiality of the jurors, in that case may possibly by some be held
a correct one; but the manner of applying that test as then practised
upon, is what I believe can be accounted for upon no other supposition
than that of a determination on the part of the judge to procure the
conviction of the accused. Upon what other principle can it be accounted
for, that the jurors should be asked whether they had formed and
delivered an opinion upon the charges laid in the indictment, when they
knew not and were not suffered to know what those charges were? Why else
could it be laid down by the judge, that because the individuals called
to serve upon the jury did not know what charges were in the indictment,
(having never seen it nor heard it read,) that therefore they could not
have formed and delivered an opinion upon the subject? And why else did
the judge, when this monstrous logic was contradicted by the fact of one
of the jurors delivering in open court an opinion upon the whole subject
of those charges, without having seen or heard the indictment read; why
else did the judge, in the teeth of this damning fact, order the jurors
sworn?
Every juror sworn might, like Mr. Basset, have formed and delivered an
opinion which concluded the conviction of the accused, and yet because
they did not know that the subject-matter of such opinion constituted the
charges in the indictment, having neither seen it nor heard it read, the
expression of such opinion created no disqualification. Unworthy evasion!
An evasion which prevents the doctrine of disqualification in a juror
from receiving any practical operation. An evasion which effectually puts
at naught that principle of the constitution so often adverted to in a
former part of the argument, that “the accused shall enjoy the right of
a trial by an impartial jury.” Upon this point I beg leave to read two
authorities. [Mr. Early here cited 3 Bac. Abr. 176, and Co. L. 157.]
But, sir, the scene rises upon us. We have now to examine a part of the
transaction for which, I had supposed, human invention might be tortured
for a palliation in vain. I allude to the rejection of Mr. Taylor’s
testimony. The reason assigned for that rejection was, that the witness
could not prove the truth of the whole of _any one charge_. Let us, for
a moment, examine the consequences of this doctrine. According to the
judge’s own decisions then, as well as his doctrine now, each charge
laid in the indictment must have constituted a separate offence. For it
is explicitly declared both by Mr. Hay and Mr. Nicholas, that when an
application was made to continue the case, because of the absence of
some material witnesses, the application was rejected, upon the ground
that it did not appear from the affidavit filed that the witnesses, so
absent, could prove the truth of all the charges. That proof of the
truth of a part only, would be of no avail, and that the whole must be
proved to entitle the traverser to an acquittal. Each charge in the
indictment, then, must have constituted a _separate offence_; for the
charges cannot be made to help each other out. One charge, however, it
seems might consist of different facts. This was the case with several
in that indictment. It was particularly the case with the very charge,
the truth of which Mr. Taylor was called to prove. “The President was
a professed aristocrat. He had proved faithful and serviceable to the
British interest.” Here was a charge made up of two distinct facts;
so distinct in their nature, that the knowledge of their truth might
not only rest with different persons, but was extremely likely not to
rest with any _one_ witness. Put the case of a man charged with any
offence--murder, theft, or any other crime you please. There may be a
string of facts upon the proof of which the defence may depend; some
within the knowledge of one man, some within that of another. Was it ever
heard of before, that, because one witness could not prove the existence
of all those facts, that, therefore, such witness should not be examined
as to what he did know? Or, if some of the facts depended upon written
testimony, was it ever heard of before, that, therefore, a witness should
not be examined as to those resting on oral testimony? To these questions
no man will answer in the affirmative. Why, then, was an unheard-of and
palpably absurd doctrine brought to bear in Callender’s case? Was the
defence of justification, under the sedition law of the United States,
such an anomaly in its nature, that none of the established rules of
jurisprudence would apply to it? Was it a thing so _entire_ in its
nature, that it could not consist of different parts? I have always
been taught, and the respondent’s answer confirms the principle, that a
defence must apply to the whole of a charge. If, then, a charge consist
of different parts, surely, so must the defence. But, according to Judge
Chase, be the parts ever so many, they shall not be proven, unless the
proof can all be made by one witness, or unless it appear that the
defendant has proof in reserve to establish all.
The fifth and sixth articles rest upon grounds so extremely simple, and
so easily comprehended, that it appears totally unnecessary to fatigue
the patience of the honorable Court by dwelling upon them.
The seventh article is as follows:
“That at a circuit court of the United States, for the district of
Delaware, held at Newcastle, in the month of June, one thousand eight
hundred, whereat the said Samuel Chase presided, the said Samuel Chase,
disregarding the duties of his office, did descend from the dignity
of a judge, and stoop to the level of an informer, by refusing to
discharge the grand jury, although entreated by several of the said
jury so to do; and after the said grand jury had regularly declared,
through their foreman, that they had found no bills of indictment, nor
had any presentments to make, by observing to the said grand jury that
he, the said Samuel Chase, understood ‘that a highly seditious temper
had manifested itself in the State of Delaware, among a certain class
of people, particularly in Newcastle County, and more especially in the
town of Wilmington, where lived a most seditious printer, unrestrained
by any principle of virtue, and regardless of social order; that the
name of this printer was’--but checking himself, as if sensible of the
indecorum which he was committing, added, ‘that it might be assuming
too much to mention the name of this person, but it becomes your duty,
gentlemen, to inquire diligently into this matter,’ or words to that
effect; and that with intention to procure the prosecution of the printer
in question, the said Samuel Chase did, moreover, authoritatively enjoin
on the District Attorney of the United States, the necessity of procuring
a file of the papers to which he alluded, (and which were understood to
be those published under the title of ‘Mirror of the Times and General
Advertiser,’) and, by a strict examination of them, to find some passage
which might furnish the groundwork of a prosecution against the printer
of the said paper; thereby degrading his high judicial functions,
and tending to impair the public confidence in, and respect for, the
tribunals of justice, so essential to the general welfare.”
The respondent stands here charged with a conduct, than which, in my
opinion, nothing could be more at war with his official duty--nothing
more tarnish his official character. The constitution and laws of this
country certainly intended in erecting high judicial tribunals, that
those who might be appointed to minister therein, should be impartial
dispensers of justice between such as might resort thither for an
adjustment of their differences. In public prosecutions more especially
was it intended that such dispensation should be made without respect to
persons. In these, above all other cases, ought a judge to stand aloof
from influence, free from predilection towards one, or prejudice against
the other. Most peculiarly here is it his duty to stand firm at his post,
resisting the overbearing influence of a powerful public, and protecting
the rights of the accused in so unequal a contest. But Judge Chase,
disregarding these principles, always held sacred in a land of laws,
converts himself into a hunter after accusations. He who, in the humane
language of the laws, should be counsel for the accused, becomes himself
an accuser. He, whose duty it is impartially to decide between the
prosecutor and prosecuted, becomes himself the procurer of prosecutions.
The eighth article charges the respondent with prostituting
the judicial character by making a political speech to the
grand jury at Baltimore, in the State of Maryland, against the
Government of the United States and the Government of Maryland.
There are features in that part of the judge’s official conduct, charged
in this article, which place him in a point of view awfully grand.
We have heretofore been viewing him as bringing his talents to bear
upon individuals. Here we see his genius rising, in the majesty of its
strength, to far higher objects. Here we see him consigning over whole
governments to the scourge of his own avenging wrath. Whithersoever he
turned his eyes, whether to the State constitution and laws, or to the
laws and constitution of the whole Union, they were equally exposed to
the whip and the rack.
M. CAMPBELL then rose and spoke as follows.
Mr. President and Gentlemen of the Senate: The scene, presented to the
nation by this trial, is more than usually interesting and important. One
of the highest officers of the government, called upon by the voice of
the people, through their representatives, before the highest tribunal
known to our constitution--that same tribunal that sanctioned his
elevation--to answer for the abuse of the power with which he had been
intrusted! It is a melancholy truth, that derogates much from the dignity
of human nature, but it is a truth that has been for ages established by
experience, that high and important powers have a tendency to corrupt
those on whom they are conferred. Few minds are possessed of sufficient
integrity and independence, when elevated above the ordinary level of the
great mass of their fellow-citizens, to resist the impulse their high
station gives them, to grasp at still greater powers, and prostitute
those which they already possess.
Hence it has been the great exertion of all governments, who regard the
rights and liberties of the people, and still must continue to be so, to
watch over the conduct of the high and confidential officers of State,
and guard against their abusing the powers reposed in them. For this
purpose the mode of trial by impeachment was resorted to in very early
times in that country from which we have derived most of our laws and
usages. Near five hundred years ago, the representatives of the people in
that nation felt themselves clothed with sufficient authority to check
the abuses of power, in the highest officers under the Crown, by calling
upon them by impeachment to answer before the House of Lords for their
conduct, and punishing them for such acts as were unauthorized, illegal,
or oppressive.
It was a wise and politic measure to have charges of this nature tried
by the highest tribunal in the nation, that would not be _awed_ by the
great powers and elevated standing of the accused, nor influenced by the
popular voice of the accusers, further than a strict regard to impartial
justice would require. As I conceive, therefore, that pure and unstained
impartiality ought to be the characteristic feature in the trial by
impeachment, I shall for myself, and I conceive I may in the name of the
representatives of the people, utterly disclaim any design or wish that
party considerations, or difference in political sentiments, should,
in the remotest degree, enter into the investigation, or affect the
decision of this question. Yet, in order to ascertain the motives that
actuated the respondent, it may become necessary to notice the difference
of political sentiments, so far as regarded the accused, and those
who are stated to have been injured by his conduct, at the time those
transactions took place, that gave origin to this prosecution.
In the view which I propose taking on this subject, I shall in the first
place notice the provisions in the constitution relative to impeachment,
and endeavor to ascertain the precise object and extent of such
provision, so far as the same may relate to the present case.
The first provision in the constitution on this subject, (art. 1st,
sec. 3,) declares, that the Senate shall have the sole power to try all
impeachments. Here we discover the great wisdom of the framers of the
constitution. The highest and most enlightened tribunal in the nation is
charged with the protection of the rights and liberties of the citizens
against oppression from the officers of Government under the sanction of
law; unawed by the power which the officer may possess, or the dignified
station he may fill, complete justice may be expected at their hands. The
accused is called upon before the same tribunal, and in many instances,
before the same men, who sanctioned his official elevation, to answer for
abusing the powers with which he had been intrusted. Men who are presumed
to have had a favorable opinion of him once, are to be his judges; no
inferior or co-ordinate tribunal is to decide on his case, which might
from motives of jealousy or interest be prejudiced against him and wish
his removal. No, sir, his judges, without the shadow of temptation to
influence their conduct, are placed beyond the reach of suspicion.
The next provision in the constitution declares that judgment in cases
of impeachment shall not extend further than to removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit
under the United States.
Here the constitution seems to make an evident distinction between
such misdemeanors as would authorize a removal from office, and
disqualification to hold any office, and such as are criminal, in the
ordinary sense of the word, in courts of common law, and punishable by
indictment. So far as the offence committed is injurious to society,
only in consequence of the power reposed in the officer being abused
in the exercise of his official functions, it is inquirable into
only by impeachment, and punishable only by removal from office, and
disqualification to hold any office; but so far as the offence is
criminal, independent of the office, it is to be tried by indictment,
and is made punishable according to the known rules of law in courts
of ordinary jurisdiction. As, if an officer take a bribe to do an act
not connected with his office, for this he is indictable in a court of
justice only. Impeachment, therefore, according to the meaning of the
constitution, may fairly be considered a kind of inquest into the conduct
of an officer, merely as it regards his office; the manner in which he
performs the duties thereof; and the effects that his conduct therein may
have on society. It is more in the nature of a civil investigation, than
of a criminal prosecution. And though impeachable offences are termed in
the constitution high crimes and misdemeanors, they must be such only
so far as regards the official conduct of the officer; and even treason
and bribery can only be inquired into by impeachment, so far as the same
may be considered as a violation of the duties of the officer, and of
the oath the officer takes to support the constitution and laws of the
United States, and of his oath of office; and not as to the criminality
of those offences independent of the office. This must be inquired into
and punished by indictment.
THURSDAY, February 21.
Mr. CAMPBELL, _in continuation_.
I will now proceed, as well as my indisposition will permit, to examine
in a brief manner the second part of the subject, containing the several
charges founded on the trial of Callender, at Richmond, as stated in the
second, third, and fourth articles of the impeachment. I will consider
these several articles in the order in which the transactions on which
they are founded took place in court. In order to ascertain the motives
that actuated the judge in this whole transaction, it will only be
necessary to view his conduct as proved, so far as the same relates to
this subject, previous to the trial. The first account we have of the
intended prosecution, or I might say persecution, of Callender, is at
Annapolis. Here the judge received the famous book called the “Prospect
before Us,” and upon which the prosecution was founded, and here the
determination was formed to convict and punish Callender. The respondent
said he would take the book with him to Richmond; that the libellous
parts had been marked by Mr. Martin, and that before he returned he
would teach the lawyers of Virginia to know the difference between the
liberty and licentiousness of the press; and that, if the Commonwealth of
Virginia was not totally depraved, if there was a jury of honest men to
be found in the State, he would punish Callender before he returned from
Richmond. This is the evidence of Mr. Mason, nearly in his own words,
and no person will pretend to doubt its correctness. What language could
be used that would more clearly show the partiality and predetermination
of the judge to punish Callender, and the spirit of persecution by
which he was actuated? Again: on his way to Richmond, according to the
evidence of Mr. Triplett, the judge reviles the object of his intended
vengeance; states his surprise and regret that he had not been hanged in
Virginia; remarks that the United States had shown too much lenity to
such renegadoes; and after arriving at Richmond, informs the deponent
he was afraid they would not be able to get the damned rascal at that
court. Thus evincing in every stage of this business that intolerant
spirit of oppression and vengeance that seems to have given spring to
all his actions. After the indictment is found against Callender, the
panel of the petit jury is presented to the judge; he inquires if he
had any of the creatures called Democrats on that panel, directs the
marshal to examine it, and if there were any such on it, to strike them
off. This is the evidence of Mr. Heath, whose character and standing
in society are known to many of the members of this honorable Court.
And, though his evidence is opposed to the negative declarations of Mr.
Randolph, who affirms that he did not present the panel of the jury to
the judge, or receive such directions, yet I conceive the Court will give
more weight to the affirmative declarations of Mr. Heath, with regard
to these facts, than to the negative assertions of Mr. Randolph, who
may have forgotten the transaction. This point rests upon the integrity
and veracity of Mr. Heath. He could not receive the impression of these
facts, unless the transaction had taken place; he could not reasonably be
mistaken; the affair was new and extraordinary, and must have arrested
his attention; and in this case there is no ground to make allowance
for a treacherous memory, for it is not pretended that the witness, Mr.
Heath, has forgot the facts, but that they never existed. If you do
not, therefore, believe the statement he makes, it must follow that you
admit the witness has wilfully and corruptly stated a falsehood. This,
I presume, will not be admitted. But, on the other hand, Mr. Randolph
may have forgotten the transaction in the bustle of business, and this
will account for the difference in the evidence of the witnesses without
impeaching the veracity of either. This mode of reconciling the evidence
is agreeable to the rules of law. I take the facts, therefore, as stated
by Mr. Heath, to be correct, and they afford an instance of judicial
depravity hitherto unequalled and unknown in our country--a direct
attempt to pack a jury of the same political sentiments with the judge to
try the defendant. This is a faint representation of the previous conduct
of the judge relative to this subject, before whom the defendant was
about to be tried, or rather before whom he was to be called for certain
conviction and punishment, for it ought not to be dignified with the name
of a trial. With this view, therefore, of the temper and disposition of
the judge, and of his previous conduct on this occasion, we will examine
the first important step taken in the trial, in which the designs of
the judge begin more clearly to unfold themselves, viz: his refusal to
postpone or continue the trial until the next term, on an affidavit
regularly filed, stating the absence of material witnesses and the places
of their residence, being the second charge in the fourth article.
The next charge which I propose to examine is contained in the second
article of the impeachment, and consists in the judge’s overruling the
objection of John Basset, one of the jury, who wished to be excused from
serving on the trial of Callender, because he had made up his mind as to
the book from which the words charged to be libellous in the indictment
had been drawn. The constitution secures to defendants charged with
crimes, the right of a trial by an impartial jury; any thing, therefore,
that goes to show that a man has made up an opinion with regard to the
guilt or innocence of the accused, or with regard to the matter in
question, or decided it in his own mind, proves him to be disqualified
to serve as a juror, because it proves he is not impartial, has a bias
upon his mind, and cannot be said to be indifferent. The same doctrine
is supported by the laws of England. In order to show this, I will refer
the Court to 3 Bac. Ab. (new ed.) 756, and also Co. Litt. 158; where
it is stated, if a juror has declared his opinion, touching the matter
in question, &c., or has done any thing by which it appears that he
cannot be indifferent or impartial, &c., these are principal causes of
challenge; and therefore such juror would be disqualified. Here it is
manifest, that though declaring an opinion is good cause of challenge to
a juror, if it is not necessary he should declare such opinion in order
to disqualify him; it is sufficient that he has done something, whether
making up an opinion, or doing any act whatever, by which it appears he
is not indifferent, is not perfectly impartial.
The next charge to be inquired into, is that stated in the third article,
in rejecting the evidence of Colonel Taylor, a material witness in favor
of the defendant, on the pretence that he could not prove the truth of
the whole of one charge. In this instance the judge acted contrary to all
former precedents in courts of justice, and without the shadow of law
or reason to justify his conduct. Not a solitary case could be stated
by any of the witnesses of a similar conduct in a judge. The rule here
adopted, with regard to the admissibility of evidence, would deprive the
jury of their undoubted right to decide on the credibility and weight
of evidence, as well as on the extent to which it proved the matter
in question; would transfer in substance this right to the Court, and
thereby shake to its very centre the fabric so justly admired, and held
so sacred, _of trial by jury_. It would make it necessary for the party
to present to the Court all the evidence relied upon to make out his
case. This evidence, the Court or judge would first deliberately examine,
compare it with the charges or case to be supported, and if it did not,
in his opinion, prove the whole of one charge, or go the whole extent
of the case to be established by it, he would reject it, and not permit
the jury to hear it. This would strip the jury of the very prerogative
that renders this kind of trial so much superior to all others, that of
deciding on the weight and credit of evidence.
But it is stated that Judge Griffin concurred with him in opinion, and
this is insisted upon by the accused in different parts of his answer,
as an excuse for the errors he committed, if, as he states, they were
errors. This seems to be a kind of forlorn hope resorted to, when all
other expedients fail. To this argument of the judge I would in this
place answer, once for all, that it can be no excuse for him, nor any
justification of his offences, that another has been equally guilty with
himself; and it must strongly prove the weakness of his defence to rely
upon this ground. Though Judge Griffin has not yet been called to an
account for his conduct on this occasion, that is no reason why he should
not hereafter be made to answer for it. The nation has not said he was
innocent, or that he will not be proceeded against for this conduct; and
there is no limitation of time that would screen him from the effects of
charges of this kind, if they should be brought forward and supported
against him hereafter. No ground of excuse therefore can arise from the
circumstance of Judge Griffin not having been called upon to answer for
his conduct in this respect.
I will now proceed to notice very briefly the conduct of the judge in
the subsequent part of this trial. Compelling the defendant’s counsel to
reduce to writing all questions to be asked the witness, was a direct
innovation on the practice in our courts of justice, and tended to
embarrass the management of and weaken the defence. It is proved by the
testimony of all the witnesses, that no such practice ever prevailed
in our courts of justice, for such a purpose as that avowed in this
instance; the only cases in which it is required to reduce to writing
questions to be asked a witness, and the only cases in which it can be
proper or consistent with reason and justice to do so, are those in which
an objection is made to a question proposed to be asked, on the ground of
its being improper and contrary to the rules of evidence; and in order to
ascertain the precise meaning and effect of the question, so as to decide
on the objection made to it, it may be proper to require it to be reduced
to writing, but it never was before done, so far as we can discover, for
the purpose of ascertaining how far the witness could prove the matter
in question, and whether he could prove the whole of one charge or not,
and thereby decide whether the witness should or should not be examined.
According to this rule the judge would first try the cause himself upon
the evidence offered, by the questions thus reduced to writing, and if
he did not consider such evidence fully sufficient to support the whole
of the charge or case to which it was offered, he would reject it, and
not permit the jury to hear a word of it, lest they might consider it
stronger than he did, and give it sufficient weight to support the
case to which it was offered. This mode of proceeding was left to be
discovered and adopted by Judge Chase.
Barely to notice the conduct of the respondent, at Newcastle in Delaware,
as charged in the seventh article, is sufficient to show that he was
there actuated by the same spirit of persecution and oppression that has,
as already stated, marked the whole of his conduct during the course
of these transactions. That he should descend from the elevated and
dignified station in which he was placed as a judge, to hunt for crimes
as a common informer against his fellow-citizens; urge the jury to take
notice of, and present certain persons sufficiently designated though not
named; and press the attorney for the district to search for evidence
among the files of newspapers to support a prosecution, was degrading
to the sacred character of a judge, and was perverting the judicial
authority to a mere engine of persecution to answer party purposes.
Of the same complexion with this is the conduct of the respondent in
delivering an inflammatory and disorganizing charge to the grand jury
at Baltimore, as stated in the eighth article of the impeachment.
This proceeding evinced a mind inflamed by party spirit and political
intolerance; it was calculated to disturb the peace of the community,
and alarm the people at the measures of Government: to force them by
the terror of judicial denunciation to relinquish their own political
sentiments and adopt those of the judge. This was the favorite object
of this whole proceeding, and to obtain it no means were left untried.
It was attempted to excite the fears of the public mind, to destroy the
confidence of the people in the administration of their Government. The
judicial authority was prostituted to party purposes, and the fountains
of justice were corrupted by this poisonous spirit of persecution, that
seemed determined to bear down all opposition in order to succeed in a
favorite object. Citizens of all descriptions felt alarmed at this new
and unusual conduct. All the counsel at the bar, wherever the respondent
went, though consisting of the ablest and most enlightened in the nation,
were agitated into a general ferment, and the whole community seemed
shocked at such outrages upon common sense; for to go to trial was to go
to certain conviction. Is this, Mr. President, the character that ought
to distinguish the Judiciary of the United States? No, sir. The streams
of justice that flow from the American bench ought to be as pure as the
sunbeams that light up the morning. The accused should come before the
Court, with a well-founded confidence that the law will be administered
to him with justice, impartiality, and in mercy. When this is the case,
he submits without a murmur to his fate, and hears the sentence of
condemnation pronounced against him, with a mind that must approve the
justice of the law and the impartiality of those who administer it.
The decision of this cause may form an important era in the annals of
our country. Future generations are interested in the event. It may
determine a question all-important to the American people; whether the
laws of our country are to govern, or the arbitrary will of those who are
intrusted with their administration. Mr. President, we, on this important
occasion, behold the rights and liberties of the American people hover
round this honorable tribunal, about to be established on a firm basis by
the decision you will make, or sent afloat on the ocean of uncertainty,
to be tossed to and fro by the capricious breath of usurped power and
innovation.
Mr. CLARK addressed the Chair as follows--Mr. President: I rise only to
make a few remarks on two of the articles, the fifth and sixth, that
the counsel for the respondent may be possessed of all the points we
mean to make. I will endeavor, in a few words, to state the practice
which we think ought to have been pursued in the case of Callender. The
practice in the federal courts is regulated by that in each State. If
this position be correct, we contend, that the proper process in the
case of Callender was a summons. An act of Virginia, passed in the year
1792, provides that the grand jury “shall present all treasons, murders,
felonies, _or other misdemeanors whatsoever_, which shall have been
committed or done within the district for which they are impanelled.”
By another act of Virginia, passed in the same year, it is enacted that,
“upon presentment made by the grand jury of an offence not capital, the
Court shall order the clerk to issue a summons or other proper process
against the person or persons so presented, to appear and answer such
presentment _at the next Court_, and thereupon hear and determine the
same according to law.”
In this last provision, the words, “_or other proper process_,” have
a direct application to the previous provision, which enacts that the
grand jury shall present all treasons, murders, felonies, “or other
misdemeanors.” For treasons, murders, and felonies, we admit that a
capias is the proper process; and when the law directs _other proper
process_, it had reference to a class of crimes where a capias was
required. It is in vain alleged, that the counsel for Callender made
no objection to the process issued. They were not at that time to be
considered as his counsel; it was only after he was brought into court
that their duty commenced.
Further, whether the proper process was a capias or summons, the law of
Virginia requires that it shall be returnable to the next Court; and I
contend that this point is established by the English practice. To show
which I refer to Hawkins’s Pleas of the Crown, where it is stated that
a _venire facias_, which is in the nature of a summons, is the proper
process, and that it is returnable to the next Court.
It was surely, then, the duty of the judge to be acquainted with the
laws of England, however unacquainted he may have been with the laws of
Virginia. He cannot, therefore, on this ground, attempt a justification
from ignorance. In his answer he informs us that ignorance of the law
is no excuse. If it is no excuse in an unlettered individual, shall it
constitute the apology of him who was expressly appointed to expound
the law and administer justice? And if, on this occasion, he was not
acquainted with the law, did it, therefore, become him to proceed with
such fatal precipitancy? No sooner was the presentment made than the
marshal, before any indictment was brought in, was despatched after
Callender. We can only account for this by supposing that it was the
intention of the judge to act in conformity to his previous declaration,
however jocularly it may have seemed to have been made; and that this
was one of the means he had determined to pursue in order to convict
Callender, regardless of the dignity of his station or the innocence of
the man. Having offered these remarks, I am instructed to say that the
case is fully opened on the part of the prosecution.
_Argument for the Defence._
Mr. HOPKINSON.--Mr. President: We cannot remind you, and this honorable
Court, as our opponents have so frequently done, that we address you
in behalf of the majesty of the people. We appear for an ancient and
infirm man, whose better days have been worn out in the service of that
country which now degrades him; and who has nothing to promise you for
an honorable acquittal but the approbation of your own consciences.
We are happy, however, to concur with the honorable Managers in one
point; I mean the importance they are disposed to give to this cause.
In every relation and respect in which it can be viewed, it is, indeed,
of infinite importance. It is important to the respondent to the full
amount of his good name and reputation, and of that little portion of
that happiness the small residue of his life may afford. It is important
to you, Senators and judges, inasmuch as you value the judgment which
posterity shall pass upon the proceedings of this day. It is important
to our country, as she estimates her character for sound, dignified,
and impartial justice, in the eyes of a judging world. The little, busy
vortex that plays immediately round the scene of action, considers this
proceeding merely as the trial of Judge Chase, and gazes upon him as the
only person interested in the result. This is a false and imperfect view
of the case. It is not the trial of Judge Chase alone. It is a trial
between him and his country, and that country is as dearly interested as
the judge can be, in a fair and impartial investigation of the case, and
in a just and honest decision of it. There is yet another dread tribunal
to which we should not be inattentive. We should look to it with solemn
impressions of respect. It is posterity; the race of men that will come
after us. When all the false glare and false importance of the times
shall pass away; when things shall settle down into a state of placid
tranquillity, and lose that bustling motion that deceives with false
appearances; when you, most honorable Senators, who sit here to judge,
as well as the respondent who sits here to be judged, shall alike rest
in the silence of the tomb, then comes the faithful, the scrutinizing
historian, who, without fear or favor, will record this transaction; then
comes a just and impartial posterity, who, without regard to persons
or to dignities, will decide upon your decision. Then, I trust, the
high honor and integrity of this Court will stand recorded in the pure
language of deserved praise, and this day will be remembered in the
annals of our land, as honorable to the respondent, to his judges, and to
the justice of our country.
We have heard, sir, from the honorable Managers who have addressed
you, many harsh expressions. I hope, sir, they will do no harm.
We have been told of the respondent’s unholy sins, which even the
heavenly expectation of sincere repentance cannot wash away; we have
been told of his volumes of guilt, every page of which calls loudly
for punishment. This sort of language but pursues the same spirit
of asperity and reproach which was begun in the replication to our
answer. But we come here, sir, not to complain of any thing; we come
expecting to bear and to forbear much. It does, indeed, seem to me,
that the replication filed by the honorable Managers on behalf of the
House of Representatives and of all the people, carries with it more
acrimony than either the occasion or their dignity demanded. It may be
said that they have resorted for it to English precedent, and framed it
from the replication filed in the celebrated case of Warren Hastings.
There is, however, no similarity between that case and ours. Precedents
might have been found more mild in their character, and more adapted
to the circumstances of our case. The impeachment of Hastings was not
instituted on a petty catalogue of frivolous occurrences, more calculated
to excite ridicule than apprehension, but for the alleged murder of
princes and plunder of empires. If, however, the choice of this case
as a precedent for our pleadings, has exposed us to some unpleasant
expressions, it also furnishes to us abundance of consolation and hope.
There, the most splendid talents that ever adorned the British nation,
were strained to their utmost exertion to crush the devoted victim of
malignant persecution. But in vain; the stern integrity, the enlightened
perception, the immovable justice of his judges, stood as a barrier
between him and destruction, and safely protected him from the fury of
the storm. So, I trust in God, it will be with us.
In England, the impeachment of a judge is a rare occurrence. I recollect
but two in half a century. But, in our country, boasting of its superior
purity and virtue, and declaiming ever against the vice, venality, and
corruption of the Old World, seven judges have been prosecuted criminally
in about two years. A melancholy proof either of extreme and unequalled
corruption in our Judiciary, or of strange and persecuting times amongst
us.
The first proper object of our inquiries in this case is, to ascertain
with proper precision what acts or offences of a public officer are the
objects of impeachment. This question meets us at the very threshold
of the case. If it shall appear that the charges exhibited in these
articles of impeachment are not, even if true, the constitutional
subjects of impeachment; if it shall turn out on the investigation
that the judge has really fallen into error, mistake, or indiscretion,
yet if he stands acquitted in proof of any such acts as by the law of
the land are impeachable offences, he stands entitled to discharge on
his trial. This proceeding by impeachment is a mode of trial created
and defined by the constitution of our country; and by this the Court
is exclusively bound. To the constitution, then, we must exclusively
look to discover what is or is not impeachable. We shall there find
the whole proceeding distinctly marked out; and every thing designated
and properly distributed necessary in the construction of a court of
criminal jurisdiction. We shall find, 1. Who shall originate or present
an impeachment. 2. Who shall try it. 3. For what offences it may be
used. 4. What is the punishment on conviction. The first of these points
is provided for in the second section of the first article of the
constitution, where it is declared that “the House of Representatives
shall have the sole power of impeachment.” This power corresponds with
that of a grand jury to find a presentment or indictment. In the third
section of the same article, the Court is provided before whom the
impeachment thus originated shall be tried: “The Senate shall have the
sole power to try all impeachments.” And the fourth section of the second
article points out and describes the offences intended to be impeachable,
and the punishment which is to follow conviction; subject to a limitation
in the third section of the first article.
I offer it as a position I shall rely upon in my argument, that no judge
can be impeached and removed from office for any act or offence for which
he could not be indicted. It must be by law an indictable offence. One
of the gentlemen, indeed, who conduct this prosecution, (Mr. Campbell,)
contends for the reverse of this proposition, and holds that for such
official acts as are the subject of impeachment no indictment will lie or
can be maintained. For, says he, it would involve us in this monstrous
oppression and absurdity, that a man might be twice punished for the same
offence--once by impeachment, and then by indictment. And so most surely
he may; and the limitation of the punishment on impeachment takes away
the injustice and oppression the gentleman dreads.
The House of Representatives has the power of impeachment; but for what
they are to impeach, in what cases they may exercise this delegated
power, depends on other parts of the constitution, and not on their
opinion, whim, or caprice. The whole system of impeachment must be taken
together, and not in detached parts; and if we find one part of the
constitution declaring who shall commence an impeachment, we find other
parts declaring who shall try it, and what acts and what persons are
constitutional subjects of this mode of trial. The power of impeachment
is with the House of Representatives--but only for impeachable offences.
They are to proceed against the offence in this way when it is committed,
but not to _create_ the offence, and make any act criminal and
impeachable at their will and pleasure. What is an offence, is a question
to be decided by the constitution and the law, not by the opinion of a
single branch of the Legislature; and when the offence thus described
by the constitution or the law has been committed, then, and not until
then, has the House of Representatives power to impeach the offender. So
a grand jury possesses the sole power to indict; but in the exercise of
this power they are bound by positive law, and do not assume under this
general power to make any thing indictable which they might disapprove.
If it were so, we should indeed have a strange, unsettled, and dangerous
penal code. No man could walk in safety, but would be at the mercy of the
caprice of every grand jury that might be summoned, and that would be
crime to-morrow which is innocent to-day.
What part of the constitution then declares any of the acts charged and
proved upon Judge Chase, even in the worst aspect, to be impeachable?
He has not been guilty of bribery or corruption; he is not charged with
them. Has he then been guilty of “_other high crimes and misdemeanors_?”
In an instrument so sacred as the constitution, I presume every word
must have its full and fair meaning. It is not then only for crimes and
misdemeanors that a judge is impeachable, but it must be for _high_
crimes and misdemeanors. Although this qualifying adjective “_high_”
immediately precedes and is directly attached to the word “_crimes_,”
yet, from the evident intention of the constitution and upon a just
grammatical construction, it must be also applied to “_misdemeanors_.”
Observe, sir, the crimes with which these “other high crimes” are classed
in the constitution, and we may learn something of their character. They
stand in connection with “_bribery and corruption_;” tried in the same
manner and subject to the same penalties. But if we are to lose the force
and meaning of the word “_high_” in relation to misdemeanors, and this
description of offences must be governed by the mere meaning of the term
“misdemeanors,” without deriving any grade from the adjective, still my
position remains unimpaired, that the offence, whatever it is, which
is the ground of impeachment, must be such a one as would support an
indictment. “Misdemeanor” is a legal and technical term, well understood
and defined in law; and in the construction of a legal instrument we must
give to words their legal signification. A misdemeanor or a crime, for in
their just and proper acceptation they are synonymous terms, is an act
committed or omitted, in violation of a _public_ law, either forbidding
or commanding it. By this test let the conduct of the respondent be
tried, and, by it, let him stand justified or condemned.
Does not, sir, the Court, provided by the constitution for the trial
of an impeachment, give us some idea of the grade of offences intended
for its jurisdiction? Look around you, sir, upon this awful tribunal
of justice--is it not high and dignified, collecting within itself
the justice and majesty of the American people? Was such a court
created--does such a court sit to scan and punish paltry errors and
indiscretions, too insignificant to have a name in the penal code, too
paltry for the notice of a court of quarter sessions? This is indeed
employing an elephant to remove an atom too minute for the grasp of an
insect. Is the Senate of the United States, solemnly convened, and held
together in the presence of the nation, to fix a standard of politeness
in a judge, and mark the precincts of judicial decorum?
If I am correct in my position that nothing is impeachable that is not
also indictable, for what acts then may a man be indicted? May it be on
the mere caprice or opinion of any ten, twenty, or one hundred men in the
community; or must it not be on some known law of the society in which he
resides? It must unquestionably be for some offence, either of omission
or commission, against some statute of the United States--or some statute
of a particular State, or against the provision of the common law.
Against which of these has the respondent offended? What law of any of
the descriptions I have mentioned has he violated? By what is he to be
judged, by what is he to be justified or condemned, if not by some known
law of the country; and if no such law is brought upon his case--if no
such violation rises on this day of trial in judgment against him, why
stands he here at this bar as a criminal? Whom has he offended? The House
of Representatives--and is he impeached for this?
I maintain as a most important and indispensible principle, that no man
should be criminally accused, no man can be criminally condemned, but
for the violation of some known law by which he was bound to govern
himself. Nothing is so necessary to justice and to safety as that the
criminal code should be certain and known. Let the judge, as well as the
citizen, precisely know the path he is to walk in, and what he may or
may not do. Let not the sword tremble over his unconscious head, or the
ground be spread with quicksands and destruction, which appear fair and
harmless to the eye of the traveller. Can it be pretended there is one
rule of justice for a judge and another for a private citizen; and that
while the latter is protected from surprise, from the malice or caprice
of any man or body of men, and can be brought into legal jeopardy only
by the violation of laws before made known to him, the latter is to be
exposed to punishment without knowing his offence, and the criminality
or innocence of his conduct is to depend not upon the laws existing at
the time, but upon the opinions of a body of men to be collected four
or five years after the transaction? A judge may thus be impeached and
removed from office for an act strictly legal, when done, if any House of
Representatives, for any indefinite time after, shall for any reason they
may act upon, choose to consider such act improper and impeachable. The
constitution, sir, never intended to lay the judiciary thus prostrate at
the feet of the House of Representatives, the slaves of their will, the
victims of their caprice. The judiciary must be protected from prejudice
and varying opinion, or it is not worth a farthing. Suppose a grand jury
should make a presentment against a man, stating that most truly he had
violated no law or committed any known offence; but he had violated their
notions of common sense--for this was the standard of impeachment the
gentleman who opened gave us--he had shocked their nerves or wounded
their sensibility. Would such a presentment be received or listened to
for a moment? No, sir. And on the same principle, no judge should be put
in jeopardy because the common sense of one hundred and fifty men might
approve what is thus condemned, and the rule of right, the objects of
punishment or praise, would thus shift about from day to day. Are we to
depend upon the House of Representatives for the innocence or criminality
of our conduct? Can they create offences at their will and pleasure,
and declare that to be a crime in 1804, which was an indiscretion or
pardonable error, or perhaps an approved proceeding in 1800? If this
gigantic House of Representatives, by the usual vote and the usual forms
of legislation, were to direct that any act heretofore not forbidden by
law, should hereafter become penal, this declaration of their will would
be a mere nullity; would have no force and effect, unless duly sanctioned
by the Senate and the approbation of the President. Will they then be
allowed, in the exercise of their power of impeachment, to create crimes
and inflict the most serious penalties on actions never before suspected
to be criminal, when they could not have swelled the same act into an
offence in the form of a law? If this be truly the case, if this power of
impeachment may be thus extended without limit or control, then indeed is
every valuable liberty prostrated at the foot of this omnipotent House
of Representatives; and may God preserve us! The President may approve
and sign a law, or may make an appointment which to him may seem prudent
and beneficial, and it may be the general, nay the universal sentiment
that it is so; and it is undeniable that no law is violated by the act.
But some four or five years hence there comes a House of Representatives
whose common sense is constructed on a new model, and who either are or
affect to be greatly shocked at the atrocity of this act. The President
is impeached. In vain he pleads the purity of his intention, the legality
of his conduct; in vain he avers that he has violated no law and been
guilty of no crime. He will be told, as Judge Chase now is, that the
common sense of the House is the standard of guilt, and their opinion of
the error of the act conclusive evidence of corruption. We have read,
sir, in our younger days, and read with horror, of the Roman Emperor
who placed his edicts so high in the air that the keenest eye could not
decipher them, and yet severely punished any breach of them. But the
power claimed by the House of Representatives to make any thing criminal
at their pleasure, at any period after its occurrence, is ten thousand
times more dangerous, more tyrannical, more subversive of all liberty
and safety. Shall I be called to heavy judgment now for an act which,
when done, was forbidden by no law, and received no reproach, because
in the course of years there is found a set of men whose common sense
condemns the deed! The gentlemen have referred us to this standard,
and being under the necessity to acknowledge that the respondent has
violated no law of the community, they would on this vague and dangerous
ground accuse, try, and condemn him. The code of the Roman tyrant was
fixed on the height of a column, where it might be understood with some
extraordinary pains; but here, to be safe, we must be able to look into
years to come, and to foresee what will be the changing opinions of men
or points of decorum for years to come. The rule of our conduct, by which
we are to be judged and condemned, lies buried in the bosom of futurity,
and in the minds and opinions of men unknown, perhaps unborn.
The gentleman (Mr. Early) who has offered you his observations on these
articles of impeachment, appears to have grounded his argument not on the
evidence, but on the articles. Supposing, perhaps, that they would be
proved, he has taken it for granted that they have been proved, and has
shaped his remarks accordingly. Had we filed a general demurrer to these
charges, thereby admitting them as stated, the argument of the gentleman
might have had the force and application he intended. But, if I mistake
not, the respondent has pleaded not guilty, and the case must therefore
be decided by the amount of the evidence, and not by the averments of the
articles. I admit, indeed, that the honorable Managers are put to some
difficulty in this respect. They are under the necessity of making their
election between the articles and the evidence as the foundation of their
argument; for they are so totally dissimilar, that they could not take
them both; they meet in so few and such immaterial points, that no man
can argue from them both for five sentences. This being the situation
of the gentleman, he has thought proper to select the articles and the
facts therein set forth as the foundation of his argument in defiance of
the testimony. In the observations I shall have the honor to submit, I
propose to take the evidence as my text and guide, and leave the articles
to shift for themselves, under the care and patronage of our honorable
opponents.
Upon reading this first article of impeachment against the respondent,
after a due degree of horror and indignation at the monstrous tyranny
and oppression portrayed in it, the first question that would strike the
mind of the inquirer would naturally be, when did this horrid transaction
take place--when and where was it that Judge Chase thus persecuted an
unfortunate wretch to the very brink of the grave, from which he was
snatched by the interference of executive mercy, shocked at the injustice
of his condemnation? When were the rights of juries and the privileges
of counsel and their clients thus thrown down and prostrated at the feet
of a cruel and inexorable judge? What would this inquirer think and
believe on being informed that these atrocious outrages upon justice,
law, and humanity, were perpetrated five years since? Why and where has
the justice of the country slumbered so long? What now awakens it from
this lethargic sleep? Why has this monstrous offender so long escaped
the punishment of his crimes? To what region of refuge did he fly? But
will not surprise be greatly increased when it is told that at the time
of the trial of John Fries, this injured and oppressed man,--at the very
time when these crimes of the judge were committed, the Congress of the
United States, the guardian of our lives and liberties, were actually
in session in the very city where the deeds were done, and probably
witnessed the whole transaction? I do not expect to be answered here, for
I cannot suspect our honorable opponents of so much illiberality, that
at that period the administration of our affairs was in the hands of the
political friends of the judge, and therefore he was permitted to escape,
however atrocious his crimes. Whatever, sir, may have been the character
of that Administration, even if a weak and wicked one, as it has been
represented, it could have no object in protecting any individual at
so great a risk to themselves and their reputation. If Judge Chase had
really violated the law and constitution to come at the blood of Fries,
and had done this in the face of the public, the Administration would
have put too much at hazard by endeavoring to shelter him. I hope,
however, no such reason will be given for the neglect of these charges;
and as we most cheerfully and truly confide in the justice of the present
Administration, we trust no such distrust will be avowed of the integrity
of the former; we feel as safe under trial now as we should have done
then, and look without distrust for the same impartial justice from this
honorable Court, as we should have expected and received at any time.
This first article, sir, charges, “that unmindful of the solemn duties
of his office, and contrary to the sacred obligations by which he stood
bound to discharge them faithfully and impartially and without regard to
persons, the said Samuel Chase on the trial of John Fries, charged with
treason, before the circuit court of the United States, held for the
district of Pennsylvania, in the city of Philadelphia, during the months
of April and May, 1800, whereat the said Samuel Chase presided, did, in
his judicial capacity, conduct himself in a manner highly arbitrary,
oppressive, and unjust.” This general accusation is followed by three
distinct specifications of offence, to wit:
“1. In delivering an opinion, in writing, on the question of law, on the
construction of which the defence of the accused materially depended,
tending to prejudice the minds of the jury against the case of the said
John Fries, the prisoner, before counsel had been heard in his defence:
“2. In restricting the counsel for the said Fries from recurring to such
English authorities as they believed apposite, or from citing certain
statutes of the United States, which they deemed illustrative of the
positions, upon which they intended to rest the defence of their client:
“3. In debarring the prisoner from his constitutional privilege of
addressing the jury (through his counsel) on the law, as well as on the
fact, which was to determine his guilt, or innocence, and at the same
time endeavoring to wrest from the jury their indisputable right to hear
argument and determine upon the question of law, as well as the question
of fact, involved in the verdict which they were required to give.”
In the whole of these specifications I am able to discover but one truth;
the rest is wholly contradicted and disproved by the evidence. It is
true, that Judge Chase did form and reduce to writing, and, in a limited
manner, deliver an opinion on a question of law, on the construction
of which the defence of the accused materially depended--but when the
article goes on to charge that this opinion tended to prejudice the
minds of the jury against the case of John Fries the prisoner, before
counsel had been heard in his defence, it is utterly unfounded and
untrue. To whom was this opinion delivered? To the counsel for Fries
and to the Attorney for the United States; and to no other person. The
third copy, and but three were made, never was delivered to the jury or
to any other person, and never could produce any prejudice or injury to
John Fries--nor indeed was it ever intended to come to the knowledge of
the jury, until they had completely heard the discussion of the case by
counsel, when they were to have _taken out_ with them this opinion of the
judge upon the law of the case submitted to them. At that period of the
trial when it was not only the right but the duty of the Court to state
to the jury their opinion of the law arising on the facts, then, and not
until then, was it the intention of the judge to communicate to them this
deliberate opinion. Could this be done with any intention to injure or
oppress the prisoner? If such was the intention of the act, then, and not
otherwise, it was criminal. In inquiring into the nature of this act, I
confine myself now to the forming and delivery of this opinion, and to
decide its innocence or criminality we should consider it in relation to
its _motives_, its _time and manner_, and its _consequences_. If nothing
partial, oppressive, or corrupt, is to be found in any of these, I know
not in what or whence the criminality is to be established. In deciding,
sir, upon the _motive_ which prompted the judge to this act, we must look
for materials in the testimony: by this we must be governed, and not by
the imputations, surmises, and constructions of our opponents, however
eloquent and ingenious. The judge and his motives are not only strongly
denounced in the article, but have also had the same fate from the mouths
of the Managers. I take the evidence for my guide, and I know it will be
the guide of this honorable Court.
What then, sir, is the whole amount of the crime of the judge on
this occasion? That he, a law judge, had been bold enough to form an
opinion--not on John Fries’s case, or the facts or circumstances of it,
for he knew them not; but on certain abstract points of law, without
first consulting and hearing Messrs. Lewis and Dallas. And further, he
had not only formed such opinions, but he had the audacity to put them
into the hands of these gentlemen, which, in the article of impeachment,
is called “delivering the opinion.” The judge, then, on mature
deliberation, from a full consideration both of English and American
precedents and decisions, had really made up his mind upon what overt
acts would constitute the treason of levying war; and to prevent mistake,
he had reduced this opinion to writing, and for the information of the
counsel on both sides (no partial selection) he gave a copy of this
opinion to each of them, and intended to give another to the jury to take
out with them. The jury should have this opinion where they could not
mistake it, instead of their memories where it might be misunderstood. Is
not this, sir, a fair and just epitome of the facts given in evidence? Is
it not the full measure and amount of the judge’s crime and corruption?
We have heard much about the agitation of the bar on this occasion. The
particular cause of it has not been clearly explained. It might have been
produced by the demeanor of Mr. Lewis, which, from his own account, was
violent and indignant, or it might have been the mere bustle produced
by the different efforts that were made to get hold of the obnoxious
paper which Mr. Lewis cast from him with so much feeling as too foul
for his hand; or from a combination of these with other causes. Another
circumstance equally immaterial has been dignified with much importance
by the attention the Managers have bestowed upon it--I mean the _novelty_
of the proceeding. Every witness was asked in solemn form, “Did you ever
see the like before?” “How long have you been a practising lawyer?”
“How many criminals have you defended?” “Was not this mode of forming
and giving opinions by the Court a novelty to you?” Granted--it was a
_novelty_--I say granted for argument’s sake--it was a novelty; and what
follows? Is it therefore impeachable? Every innovation, however just and
beneficial, is subject to the same consequence. But, sir, if this novelty
proceeded not from impure intentions, and was not followed by oppressive
or injurious consequences, where is its injustice or criminality? There
were many other novelties in that trial. It was a novelty that a man
named John Fries should commit treason, and be tried and convicted for
it. I never heard of precisely the same thing before. It was a novelty
that counsel should desert their cause in the abrupt manner in which it
was then done. But I presume it will not be pretended that these things
were wrong merely because they were novel; much less that a judge is to
be convicted of high crimes and to be removed from office for a harmless
novelty. The articles charge not the judge with innovations and novelties
in legal forms, but with depriving John Fries and his counsel of their
constitutional rights; and if he has not done this, the rest is of no
importance now. But what is this strange novelty that excites so much
interest and alarm? Is it that a law judge had a law opinion, and was
capable of making it up for himself without the assistance of learned
counsel? I hope not. I should be sorry to suppose this is a novelty in
the United States. Was it then the reducing this opinion to writing,
putting it on paper with pen and ink, that makes the dangerous novelty?
To have the opinion is nothing; but to write it constitutes the crime.
And yet, sir, where is the difference to the prisoner? Except that in
the latter case there is more certainty; less chance of misapprehension
and mistake on the part of the jury than when it is delivered to them
verbally. It should be recollected, sir, and I am sure it is too
important to be forgotten by this honorable Court, this written opinion
contained all the limitations and discriminations on the law of treason
which could serve the prisoner, as well as those which might operate
against him. But, sir, I deny that there was so much novelty either in
forming this opinion, or in reducing it to writing, as is pretended.
Is it uncommon for judges to state their opinions on particular points
of law to counsel, even before argument, for the direction of their
observations? And was it ever before considered a prejudication of the
case, or an encroachment upon the rights of the bar? In criminal courts
the practice is constant and universal. Previous to the trial of the
cases of treason, after the restoration of Charles II., the judges of
England met together, and did form and reduce to writing opinions, not
only upon the mode of proceeding upon the trials, but also on all those
questions or points of law which they supposed would arise and require
their decision in the course of the trials. (See Kelynge’s Reports, pp.
1, 2, &c.--11.) Here the judges met in consultation expressly for the
purposes now deemed so criminal in Judge Chase, and took to their aid the
King’s counsel. Our judge did not take to his assistance the Attorney of
the United States in forming his opinion; nor did the judges in England
deliver to the counsel of the accused the result of their deliberations,
but doubtless it would have been received as a favor if they had. In the
only two points of difference, therefore, between the two cases, we have
most decidedly the advantage.
Suffer me now, sir, to offer you some observations on the second
specification of the first article of impeachment. I hope it will not
be necessary to trespass greatly on your patience in refuting it. It
charges Judge Chase with “restricting the counsel for the said John
Fries from recurring to such English authorities as they believed
apposite, or from citing certain statutes of the United States, which
they deemed illustrative of the positions upon which they intended to
rest the defence of their client.” This charge consists of two parts;
it complains of a restriction as to English authorities, and as to
American statutes. I will consider them distinctly. First, sir, permit
me to remark that these allegations are made to support the general
charge of partiality, oppression, and injustice. But what becomes of
these pretences when we bear in mind the testimony of Mr. Rawle, the
district attorney, and always, and in every situation, a gentleman whose
character, in all its relations both public and private, bears the
first stamp of respectability, and fears no competition for credit? He
has informed this honorable Court that this restriction so grievously
complained of, and now the subject of a criminal prosecution, was imposed
upon him as well as upon the counsel of Fries. Is this the character
or the conduct of partiality or oppression? Does it evince that strong
appetite the judge is said to have, to drink the heart’s blood of this
unfortunate German, and stain the pure ermine of justice with his gore?
I have always understood by partiality in a judge, a favoring bias to
one party to the prejudice of the other; but where a restriction is put
equally on both sides, I cannot conjecture how it can be resolved into
partiality or oppression. It will be seen presently that as far as this
restriction could have any operation, it was friendly in that operation
to John Fries. But, sir, what was this restriction so much complained
of, and now magnified into a high crime? That certain English decisions
in the law of treason, made before the Revolution of 1688, should not
or ought not to be read to the jury; and pray, sir, what were these
decisions? I will take their character from Mr. Lewis himself, and no
man is better acquainted with them. He says they were decisions of
dependent and corrupt judges, who carried the doctrine of constructive
treason to the most dangerous and extravagant lengths. True, they were
so--sanguinary, cruel, and tyrannical in the extreme; and could the
exclusion of such cases injure John Fries? If cases which extenuated and
softened the crime of treason had been rejected, he might indeed have
suffered; but how he was or could be injured by keeping from the jury
those cases which aggravated his offence, I am really at a loss to learn.
The restriction there was on the United States. Had they been adduced
by the Attorney-General, no doubt they would have been ably answered by
the defendant’s counsel; but the ability of the counsel was not inferior
to Fries’s counsel; and if Judge Chase had indeed a design to oppress
and injure John Fries, and to convict him on strained constructions of
treason, his best policy would surely have been to have suffered these
cases to have come forward, and if supported by his authority and the
talents of the counsel of the United States, they might have had their
influence with the jury, notwithstanding the able refutations they might
have received.
May I not now flatter myself, sir, that all the criminality charged
upon the respondent, in the second specification of the first article
of impeachment, is washed away from the minds of this honorable Court?
Under this hope and impression, I will proceed to consider, as briefly
as possible, the third and last specification. In this the judge is
charged with “debarring the prisoner from his constitutional privilege
of addressing the jury (through his counsel) on the law as well as on
the fact which was to determine his guilt or innocence, and at the same
time endeavoring to wrest from the jury their indisputable right to hear
argument, and determine upon the question of law, as well as the question
of fact, involved in the verdict which they were required to give.” This
charge is absolutely unfounded and untrue, and is, in all its parts, most
completely disproved by the evidence. As to debarring counsel from being
heard, I need only refer you, sir, to the testimony of Messrs. Tilghman
and Meredith, who expressly swear, that Judge Chase, when he threw
down the paper containing the opinion the Court had formed on the law,
explicitly declared, that, nevertheless, counsel would be heard against
that opinion. It is, indeed, true that Mr. Lewis seems, throughout the
business, to have been under an impression that nothing would be heard
in contradiction to that opinion; and that his professional rights
were invaded. But this appears to be a hasty and incorrect inference
or conclusion of his own, from the conduct of the Court. He wholly
misapprehended the Court, and has charged his misapprehension to their
account. This is the usual effect of such precipitate proceedings. The
Managers have greatly relied on this circumstance; they urge that Mr.
Lewis, through the whole affair, and in all he said concerning it, took
for granted and stated that he was debarred from his constitutional
privileges. He did so; but he did so under a mistake of his own, not
proceeding from the Court. It is not only that no other witness speaks
of any such restriction, but expressly negative it and say, some of them
at least, that none such was imposed; but Mr. Rawle has further informed
you, that it appeared to him throughout the business that Mr. Lewis had
wholly misunderstood the Court and mistook their intention. But, surely,
sir, we are not to be condemned because we have been misunderstood;
especially as the mistake seems to have been peculiar to Mr. Lewis, and
no other witness fell into the same error. I rely most implicitly on
Mr. Rawle’s testimony, not only from the strength and correctness of
his character, but from the unusual pains he took to be accurate in his
knowledge of this transaction. His notes are copious, connected, and
satisfactory, and although he has no notes of the first day’s proceeding,
yet he seems to have given an uncommon and cautious attention to every
circumstance to which he has testified. This gentleman negatives every
idea of any restriction upon the arguments of counsel, and is supported
by every witness but Mr. Lewis.
But, sir, there is one circumstance in this second day’s proceeding,
which has been introduced to show, that the respondent continued the
same tyrannical spirit with which he is charged on the first day, and
which it may be incumbent on him to remove. I mean the “unkind menace,”
as it has been termed by one of the witnesses, used to the counsel of
Fries, when the judge told them they would proceed in the defence at
the hazard or on the responsibility of their character. To ascertain
the true nature of the expression, whatever it was, which fell from the
Court in this respect, I will refer to the same guide I have endeavored
to follow throughout my argument, I mean the evidence. The aspect of this
pretended menace will then be changed into a complimentary confidence
in the discretion of the counsel, or at least into no more than such
a menace as every gentleman of the bar acts under in every case; that
is, to manage every cause before a jury with a due regard to their own
reputation; to urge nothing as law to the jury, which they are conscious
is not law, and to introduce no matter which they know to be either
improper or irrelevant. This, in its worst character, will be found
to be the whole amount of this terrible menace. What account does Mr.
Lewis give of this occurrence? After stating that the Court manifested a
_strong desire_ that he and his colleague should proceed in the defence
of their client; that every restriction, if any had been imposed, was now
removed, and that they were at full liberty to address the jury on the
law and the fact as they thought proper; the judge said that this would
be done “under the direction of the Court, and at the peril of their own
character, _if we conduct ourselves with impropriety_.” And was it not
so? And where is the criminality of saying so? Mr. Lewis did not consider
this as a menace intended to restrict him in the exercise of the rights
just before conceded him by the Court, but rather as an unwarranted
suspicion of his sense of propriety; for, says he, “I did not know of any
conduct of mine to make this caution necessary.”
A very strange and unexpected effort has been made, sir, to raise a
prejudice against the respondent on this occasion, by exciting or rather
forcing a sympathy for John Fries. We have heard him most pathetically
described as the ignorant, the friendless, the innocent John Fries. The
ignorant John Fries! Is this the man who undertook to decide that a
law which had passed the wisdom of the Congress of the United States,
was impolitic and unconstitutional, and who stood so confident of this
opinion as to maintain it at the point of the bayonet? He will not thank
the gentleman for this compliment, or accept the plea of ignorance as an
apology for his crimes. The friendless John Fries! Is this the man who
was able to draw round himself a band of bold and determined adherents
resolved to defend him and his vile doctrines at the risk of their own
lives, and of the lives of all who should dare to oppose? Is this the
John Fries who had power and friends enough actually to suspend, for
a considerable time, the authority of the United States over a large
district of country, to prevent the execution of the laws, and to command
and compel the officers appointed to execute the law to abandon the
duties of their appointment, and lay the authority of the Government at
the feet of this _friendless usurper_? The innocent John Fries! Is this
the man against whom a most respectable grand jury of Pennsylvania, in
1799, found a bill of indictment for high treason; and who was afterwards
convicted by another jury, equally impartial and respectable, with the
approbation and under the direction of a judge, whose humanity and
conduct, on that very occasion, have received the most unqualified praise
of the honorable Manager who thus sympathizes with Fries? Is this the
John Fries, against whom a second grand jury, in 1800, found another
bill for the same offence, founded on the same facts, and who was again
convicted by a just and conscientious petit jury? Is this _innocent_
German the man who, in pursuance of a wicked opposition to the power
and laws of the United States, and a mad confidence in his ability to
maintain that opposition, rescued the prisoners duly arrested by the
officers of the Government, and placed those very officers under duress;
who, with arms in his hands and menace on his tongue, arrayed himself in
military order and strength, put to hazard the safety and peace of the
country, and threatened us with all the desolation, bloodshed, and horror
of a civil war; who, at the moment of his desperate attack, cried out to
his infatuated followers, “Come on! I shall probably fall on the first
fire, then strike, stab, and kill all you can?” In the fervid imagination
of the honorable Manager, the widow and orphans of this man, even before
he is dead, are made in hypothesis to cry at the judgment seat of God
against the respondent; and his blood, though not a drop of it has been
spilt, is seen to stain the pure ermine of justice. I confess, sir, as a
Pennsylvanian, whose native State has been disgraced with two rebellions
in the short period of four years, my ear was strangely struck to hear
the leader of one of them addressed with such friendly tenderness, and
honored with such flattering sympathy by the honorable Manager.
It is not unusual, sir, in public prosecutions for the accused to appeal
to his general life and conduct in refutation of the charges. How proudly
may the respondent make this appeal! He is charged with a violent attempt
to violate the laws and constitution of his country, and to destroy the
best liberty of his fellow-citizens. Look, sir, to his past life, to
the constant course of his opinions and conduct, and the improbability
of the charge is manifest. Look to the days of doubt and danger; look
to that glorious struggle so long and so doubtfully maintained for that
independence we now enjoy; for those rights of self-government you now
exercise, and do you not see the respondent among the boldest of the
bold, never sinking in hope or in exertion, aiding by his talents and
encouraging by his spirit; in short, putting his property and his life in
issue on the contest, and making the loss of both certain by the active
part he assumed, should his country fail of success! And does this man,
who thus gave all his possessions, all his energies, all his hopes to
his country and to the liberties of the American people, now employ the
small and feeble remnant of his days, without interest or object, to
pull down and destroy that very fabric of freedom, that very Government,
and those very rights he so labored to establish? It is not credible; it
cannot be credited, but on proof infinitely stronger than any thing that
has been offered to this honorable Court on this occasion. Indiscretions
may have been hunted out by the perseverance of persecution; but I trust
most confidently that the just, impartial, and dignified sentence of
this Court, will completely establish to our country and to the world,
that the respondent has fully and honorably justified himself against
the charges now exhibited against him; and has discharged his official
duties, not only with the talents that are conceded to him, but with an
integrity infinitely more dear to him.
FRIDAY, February 22.
Mr. KEY.--Mr. President, I rise to make some observations on the second,
third, and fourth articles of the impeachment. I shall not apologize for
the manner in which I shall discharge a duty which I have voluntarily
undertaken, but merely regret that indisposition has prevented my giving
the subject that attention which it merits. It will be at once perceived
that these articles relate to the trial of Callender. Before, however,
I go into an examination of the second article, it may be proper to
notice the situation in which the judge found himself and the state
of the public mind at the time. The sedition law was passed in the
year 1799. It immediately arrested the public attention, and strongly
agitated the public feelings. In the State of Virginia it was peculiarly
obnoxious; many of the most respectable characters considered it as
unconstitutional, and as a violation of the liberty of the press; most
deemed it impolitic; while some viewed it as a salutary restraint on
the licentiousness of the press, more calculated to preserve than to
destroy it. In this state of the public mind it became the duty of the
respondent, in the ordinary assignment of judicial districts, to go into
the district of Virginia, where he was entirely a stranger, to carry the
laws into execution. It is scarcely necessary to observe that when laws
are considered obnoxious, much of the odium attending them inevitably
falls on those who carry them into effect. In May, 1800, Judge Chase
went to Richmond to hold a court; and soon after it was in session, the
grand jury found a presentment and afterwards a bill against James T.
Callender for an infraction of this law, in publishing the book entitled
“The Prospect before Us,” which brought into issue its constitutionality.
Professional men of talents, carried along by the tide of public opinion,
volunteered their services in defence of the accused; and every effort
was exhausted to wrest the decision from the respondent. Exceptions were
accordingly taken at every stage of the case; and when the jurors were
brought to the book, a question arose which forms the foundation of the
charge contained in the second article.
If we extract from this article the epithets it contains nothing will
remain, and epithets fortunately do not constitute crimes. The offence
and fact charged is, the permitting Mr. Basset to be sworn on the jury
with an intention to oppress the traverser, which is not in the least
supported by the testimony. The article alleges that Mr. Basset wished
to be excused. I appeal to the testimony, whether he did wish or desire
to be excused. The observations he made arose entirely from a scruple
in his own mind, and not from any objection to serving. Instead of
his wishing to be excused, the real fact is that which he said flowed
from the peculiar situation in which he stood; and he says that he
declared himself willing to serve, provided in law he was competent. The
fact, therefore, on which this article rests, is not supported by the
testimony, and not being supported, I might here dismiss this branch of
the subject without further animadversion.
Suppose we are mistaken in the fact, which we say is proved, that
Mr. Basset did not desire to be excused; admit that he did pray to
be excused; still, so far as he has himself, on oath, explained the
situation of his mind, there was no cause for challenge.
Admit, also, that we are mistaken in the law we have laid down, does it
follow as a necessary consequence that the directing Basset to be sworn
on the jury, was done with an intent to oppress the traverser? We call
for the facts that impeach the motives of Judge Chase. In the opening of
this case we were told that the respondent was highly gifted with rich
attainments of mind. It was correctly said; and it might have been added
that his integrity was equal to his talents. But the observation was
made to raise his head at the expense of his heart. I will examine this
argument.
The truth is that no judge is liable for an error of judgment. I
apprehend this is conceded by the article itself, which states a criminal
intent. Now for the evidence. What criminal intention do the honorable
Managers draw from it? It is said that the respondent is highly gifted
with intellectual powers, and must have known in this instance the
law. _Timeo Danaos et dona ferentes._ I dislike the compliment; the
best-gifted mortals are frail, and a single erroneous decision may be
made by any man.
I will now proceed to the third article, which, when correctly
understood, will be found as destitute of impeachable matter as either
of the other articles. It is as follows: “That, with intent to oppress
and procure the conviction of the prisoner, the evidence of John Taylor,
a material witness on behalf of the aforesaid Callender, was not
permitted by the said Samuel Chase to be given in, on pretence that the
said witness could not prove the truth of the whole of one of the charges
contained in the indictment, although the said charge embraced more than
one fact.”
In opening the case one of the honorable Managers inquired what human
subtilty or ingenuity could devise to extenuate this act of the
respondent. Our reply is that it requires no subtilty or ingenuity; that
it was correct in point of law, and that the case is so clear, that he
who runs may read. The Court must permit me to observe that the article
presents an abstract case, not growing out of, or connected with the
evidence. This Court, I apprehend, is not sitting here to decide this
abstract point, whether in any case it is admissible to prove one fact
contained in a particular charge by one witness, and one by another; but
to determine whether in this case, where one witness was offered to prove
part of one charge, and no other witness offered to the same charge, it
was proper to receive testimony offered. I contend that the decision was
correct on the case before the Court.
Mr. Robertson says, “The attorney for the United States having concluded,
the counsel for the traverser introduced Colonel Taylor as a witness,
and he was sworn; but at the moment the oath was administered, the
judge called on them, and desired to know what they intended to prove
by the witness. They answered, that they intended to examine Colonel
Taylor, to prove that Mr. Adams had avowed principles in his presence
which justified Mr. Callender in saying that the President was an
aristocrat--that he had voted against the sequestration law, and the
resolutions concerning the suspension of commercial intercourse with
Great Britain.” This was then the object and view with which Colonel
Taylor was called on. What is the charge in the articles of impeachment?
That the testimony of Colonel Taylor was rejected “on pretence that
the said witness could not prove the truth of the whole of one of the
charges, contained in the indictment, although the said charge embraced
more than one fact.” The charge in the indictment is that the President
“was a professed aristocrat; that he proved faithful and serviceable
to the British interest:” and Colonel Taylor was called to prove that
Mr. Adams had voted against the sequestration law, and the resolutions
concerning the suspension of commercial intercourse with Great Britain.
Was it competent to Colonel Taylor to give evidence on this point? The
best evidence the nature of the case will admit must be adduced. Colonel
Taylor then was clearly an incompetent witness on this point; as there
was better evidence, the journals of this honorable body, within the
reach of the traverser. It only then remained for Colonel Taylor to
prove that the President had avowed principles which showed him to be an
aristocrat; which, if proved, would have been altogether immaterial. To
prove no other facts was he called upon. Are then counsel to be indulged
in consuming the time of courts in the examination of witnesses, who have
nothing relevant to offer?
I will now proceed to the fourth article, which contains five distinct
specifications of facts charging misconduct on the respondent at Richmond.
This conduct is said to have been evinced, in the first place, “In
compelling the prisoner’s counsel to reduce to writing, and submit to the
inspection of the Court, for their admission or rejection, all questions
which the said counsel meant to propound to the above-named John Taylor,
the witness.”
If this was incorrect, I cannot perceive its injustice to Callender, nor
its partiality or intemperance. But did the conduct of the Court in this
instance correspond with the law and the practice? I apprehend that it
did. I understand it to be a clear and admitted principle of law, that
the Court is the only competent tribunal to determine the competency,
the admissibility, and the relevancy of evidence; when admitted, its
credibility is the exclusive province of the jury. I have before stated
the reasons which rendered it necessary in this case to know what
Colonel Taylor could prove. To understand the object for which he was
produced with greater certainty and precision, the judge ordered the
questions proposed to be put to be previously reduced to writing. I am
not sufficiently acquainted with the practice in the courts of Virginia
to say this was not novel, but I may surely venture to affirm that there
was nothing criminal in it. I know well that in different States there
are different forms of practice. I can only say, that Judge Chase, going
from Maryland, where the practice does prevail, would naturally carry to
Virginia the knowledge of the practice of the State from which he went.
The _second_ specification is in the following words:
“In refusing to postpone the trial, although an affidavit was regularly
filed, stating the absence of material witnesses on behalf of the
accused; and although it was manifest that, with the utmost diligence,
the attendance of such witnesses could not have been procured at that
term.”
This charge is grounded on the fact of a refusal to postpone the trial on
an affidavit. That the Court acted correctly in this instance will appear
from this consideration. Nothing is more clear than that, under the
common law, all applications for a continuance, on affidavit, are founded
on the discretion of the Court. Is it not wonderfully singular that there
should have been an application founded on an affidavit, if the law of
Virginia, as stated in the 6th article, applied to the case? One thing is
clear: either that the Attorney-General and Mr. Hay lost all recollection
of the existence of this law of Virginia respecting continuances, or
that they considered it inapplicable; for they would not otherwise have
founded the application on an affidavit. They would have produced the
law and have demanded a continuance. Did they do so? No. If, then, the
law officer of the State and Mr. Hay both forgot that it existed, is it
surprising that it should be unknown to Mr. Chase? If those gentlemen did
recollect the existence of the law, they must surely have been of opinion
that it did not apply to the case of Callender, or they would have saved
themselves the trouble of filing an affidavit. It will however be shown
that it did not apply, and hence their application founded on affidavit.
On the third specification, which charges the respondent with “the use
of unusual, rude, and contemptuous expressions towards the prisoner’s
counsel; and in falsely insinuating that they wished to excite the public
fears and indignation, and to produce that insubordination to law, to
which the conduct of the judge did, at the same time, manifestly tend;”
I have but a few observations to make. I should indeed have spared many
of the remarks I have made, were it not for an ignorance of the peculiar
ground on which the honorable Managers mean to rely in their reply, and
were it not for the fear that an omission to notice any of the charges
preferred, might be considered as an abandonment of our defence as far as
related to them.
I have nowhere discovered in the evidence any thing that supports in
point of fact the charge against Judge Chase, of falsely insinuating that
the prisoner’s counsel wished to excite the public fears and indignation
to produce insubordination to law. The judge did say that the counsel
used a popular argument, calculated to mislead and deceive the populace;
and this is the extent and head of his offending; but there is a wide
difference between this and the charge laid to his door. He told the
counsel, and told them truly, that they were availing themselves of a
popular argument, calculated to mislead and deceive the people. Attend,
I pray you, to the testimony of Mr. Hay. Did not the counsel for the
prisoner say they had no hope of exculpating him on the facts? Did they
not say they did not argue for Callender? That it was the cause, and not
the man, they defended? That they did not expect to convince Judge Chase,
or any other federal judge, of the unconstitutionality of the sedition
act? Were they not then laboring with their whole talents to catch the
popular ear? Did they not expressly declare that they had little hopes of
the jury, and that their object was to make an impression on the public
mind? And when the judge declared that the constitutionality of the act
could not be discussed before the jury, did they not, failing in their
object, abandon the defence? The ground which they meant to have taken
was withdrawn, and they withdrew with it.
As to the use of unusual, rude, and contemptuous expressions towards
the prisoner’s counsel, no particular facts appear to be relied on. The
term _captious_ may be unusual; the phrase _young gentlemen_, which in
the opening the honorable Manager metamorphosed into _boys_, but which
last word does not by the testimony appear to have been used, may have
been obnoxious to the ears of those to whom it was applied. There may
not have been manifested in this language the most refined decorum; but
let us recollect that our honorable client is not now on his trial for a
violation of the decorums of society. Possessed of great ardor of mind
and quickness of feeling, he conceives with rapidity, and expresses
with energy his ideas. This may be a weakness; but it is a weakness of
nature. Had he a colder heart, and weaker head, he might not be exposed
to these little indiscretions. But where is the _vade mecum_ from which
a judge is to derive precedents for his behavior? Courts are instituted,
not to polish and refine, but to administer justice between man and man.
One judge may possess a more pleasing urbanity of manners than another;
but are we to infer that because a man is warm in the expression of his
sentiments, he is, therefore, angry? It will not be contended that when
the counsel for the traverser spoke of the necessity of the indictment
being _verbatim et literatim_, in the witty reply of the judge that
they might as well insist that it should be _punctuatim_, there was any
violation of decorum manifested. The reply grew out of the occasion, and
never was a remark better applied.
I know of no other unusual language, except the expression of _non
sequitur_; and surely there was nothing improper in that. We have been
told that it is the usual habit of Judge Chase to interrupt counsel
when they attempt to lay down as law that which is not law. In this
case, he certainly did so; but it does not appear that he departed from
his ordinary course; and if he had, where is the rule which, on such
occasions, is to govern a judge? Such conduct, as I have before observed
on another point, violates no moral obligation, infringes no statutory
provision. The judge may not have displayed the urbanity, the suavity,
and the patience, which so happily characterize some high characters; but
where or when has the absence of these minor qualities been considered
as criminal? Some of the witnesses, and among them Colonel Taylor, have
described the conduct of the judge as imperious, sarcastic, and witty;
but no witness has pronounced it tyrannical or oppressive.
With regard to the fourth specification, which relates to the
interruption of counsel, I shall say but little. A judge has a right at
all times to interrupt counsel whenever they act improperly. It is the
inherent right of courts. When that is laid down as law which is not
law, it is not only their right, but it is their duty, to stop them.
Such interruptions may be considered vexatious by the counsel that are
interrupted; but of such matters the Court only can be the judge. One
witness, examined on the frequency of the interruptions of counsel on the
trial of Callender, has said that more interruptions occurred in a case
before Judge Iredell, whose eulogium has been pronounced by an honorable
Manager; and another witness has informed us that it is the habit of
Judge Chase frequently to interrupt counsel in civil as well as criminal
cases; that the habit arises from the vigor of his mind, and the ardor
of his feelings; that this is somewhat embarrassing to counsel, but that
a little suavity on their part soon restores the judge to good humor. On
this point I have no further observations to make. I will leave it to the
good sense of this honorable body to determine how far the conduct of the
respondent was, on this occasion, indecorous, and how far, on account of
this conduct, he is liable to impeachment.
As to the fifth specification, which is in these words: “In an indecent
solicitude, manifested by the said Samuel Chase, for the conviction of
the accused, unbecoming even a public prosecutor, but highly disgraceful
to the character of a judge, as it was subversive of justice.” I have no
precise idea of the meaning of the term _indecent solicitude_--solicitude
means _mental_ anxiety. If we are to understand by solicitude that the
judge felt anxiety for the furtherance of justice, that is simply an
operation of the mind, and to determine whether it is praiseworthy or
reprehensible, some overt act must be shown. For is it possible that, in
any interesting case, a judge can sit on the bench without feeling some
interest in the issue? This is more than falls to the lot of mortal. No,
he must have feelings; and all that can be required is, that he restrain
them from breaking out into acts subversive of justice. I will endeavor,
on this point, to condense the testimony. It is said that the solicitude
of the respondent is evinced by his indecent behavior to the counsel, and
by his conduct previous to the trial. A jocular conversation is resorted
to; and expressions made in the most unguarded moments are drawn forth in
judgment against him. After he had delivered a charge at Annapolis, Mr.
Mason came up to him, and asked him what kind of charge he had delivered,
whether it was to be considered as legal, religious, moral, or political.
To which the judge replied that it was a little of all. Some conversation
ensued on the licentiousness of the press, and he observed that when he
went to Richmond, if a respectable jury could be found, he would have
Callender punished. All this is worked up, as it were by magic, to prove
a deliberate purpose on his part to institute a prosecution. That a man
of the intelligence of Judge Chase, had he conceived such a project,
should thus jocosely, as is proved, and in public have divulged it,
is beyond all belief. Let not a casual conversation of this light and
sportive kind be tortured into evidence of a deliberate design. No man,
the least acquainted with the general character of Judge Chase, will
entertain the idea for a minute.
Another circumstance complained of, is, that Judge Chase was provided
with a _scored_ copy of “The Prospect before Us;” and this is adduced to
prove his purpose to oppress Callender. But we have given it in testimony
that this copy was scored by Mr. Martin, who handed it to the judge, when
he was about going to Richmond, to amuse him on the road, and to make
such other use of it as he pleased. What was there improper or indecent
in this? Further: the respondent is next hunted through a line of stages
on his passage from Dumfries to Richmond; and Mr. Triplet is brought
forward to prove that he expressed a wish that the damned rascal had been
hanged. Had there been a settled purpose to convict or oppress Callender,
would it not have been manifested by concealment and prudence, instead of
being divulged by such an intemperate impulse of feeling?
We next find the respondent at Richmond. And here a gentleman states
that having moved the Court for an injunction, he went to the chambers
of Judge Chase on the subject, on the morning subsequent to the motion
being made, and before the judge had gone to court; that while he was
there, Mr. David M. Randolph, the marshal, came in, and showed the judge
the panel of jurors for the trial of Callender; that the judge asked
him whether there were on it any of the creatures called democrats; and
added, if there are, strike them off. Here must be some mistake. The
witness must have heard some other person say so. Sure I am that the
testimony will show that the statement of Mr. Heath cannot be received as
correct. I impute no criminal intention to the witness; this is not my
habit; but, for ascertaining the weight which it ought to have, I will
collect and compare the several parts of the testimony on this point.
It appears that Mr. Heath was at the judge’s chambers but once. Mr.
Marshall, the clerk of the Court, called on Judge Chase the same morning
that Mr. Heath was there--he cannot recollect whether Mr. Randolph went
with him, according to his usual practice, but he is certain, from a
conversation he states, that they walked together to court; he met Mr.
Heath either in the act of coming out of the judge’s room, or exterior
to the door; and he heard no such conversation as he relates. What says
Mr. Randolph? That no such conversation ever did take place. Here, then,
the testimony is directly opposed. But it is said that our testimony is
negative, and is therefore outweighed by the positive testimony of Mr.
Heath; this, however, is not the fact. Much of our testimony is positive.
Mr. Randolph declares that he has never shown the panel of a jury to a
judge, except in the case of a grand jury offered to the Court to select
a foreman; and he is positive that the panel in the case of Callender was
not made out until the morning of the third of July, in court, when his
deputies came forward with the names of the jurors they had summoned, on
small slips of paper; and in corroboration of this evidence, it appears
on the testimony of Mr. Basset, who was sworn on the jury, that he was
not summoned until the third of July; and that the marshal sent out his
deputies that very morning to summon jurors. We oppose, then, to the
simple declaration of Mr. Heath, unaccredited by other witnesses, the
clear and strong evidence of Mr. Randolph, corroborated by that of Mr.
Marshall and Mr. Basset.
It does, then, appear to me that none of the alleged facts are so
supported as to show an indecent solicitude on the part of the respondent.
Mr. LEE.--May it please this honorable Court: We are now arrived,
Mr. President, in the course of the defence, to the fifth article
of impeachment. I have, sir, been led to believe, that the present
prosecution is brought before this honorable Court as a court of criminal
jurisdiction, and that this high Court is bound by the same rules of
evidence, the same legal ideas of crime, and the same principles of
decision which are observed in the ordinary tribunals of criminal
jurisdiction. The articles themselves seem to have been drawn in
conformity to this opinion, for they all, except the fifth, charge, in
express terms, some criminal intention upon the respondent. This doctrine
relative to impeachment is laid down in 4 Black., 259, and in 2 Woodeson,
611. “As to the trial itself, it must of course vary in external
ceremony, but differs not in essentials from criminal prosecutions before
inferior courts. The same rules of evidence, the same legal notions of
crimes and punishments, prevail. For impeachments are not framed to
alter the law, but to carry it into more effectual execution, where it
might be obstructed by the influence of too powerful delinquents, or
not easily discerned in the ordinary course of jurisdiction, by reason
of the peculiar quality of the alleged crimes. The judgment, therefore,
is to be such as is warranted by legal principles and precedents.” The
Constitution of the United States appears to consider the subject in the
same light. By the third section of the third article, “the trial of
all crimes, except in cases of impeachment, shall be by jury;” and by
the fourth section of the second article, the nature and extent of the
punishment in cases of impeachment is defined. Hence it may be inferred
that a person is only impeachable for some criminal offence. With this
view, I have examined and re-examined the fifth article of impeachment,
to know against what the defence should be made. Looking at it with a
legal eye, I find no offence charged to have been committed; and although
it may seem strange, it is not the less true, this circumstance has
produced the greatest difficulty and embarrassment in what manner the
defence should be made.
In conformity to the rule of the Supreme Court and the authority of the
case just cited, Judge Chase determined that the laws of the State
of Virginia, which require a summons to be issued in cases of the
Commonwealth, did not apply to the courts of the United States. Why, let
me again ask, should this section receive the construction contended
for by the honorable Managers? It has been shown that the laws of the
United States provide fully in regard to the process to be issued by
their courts: that, for the furtherance of justice, such a construction
is neither necessary nor convenient, and is inconsistent with other parts
of the same statute. It is therefore perfectly correct in the Court to
bestow no attention upon the laws of Virginia concerning the process to
be awarded against Callender. When a presentment was found by the grand
jury, it was the duty of the Court to act; it was their duty to award a
proper process for arresting the offender. This is not only warranted
by the principles and reasons already adduced, but is inferrible from
various passages of the laws of Congress, particularly from the 19th and
20th sections of the statute passed 30th April, 1790, 1st vol. page 108.
I will now proceed to make some observations upon the sixth article of
impeachment: “And whereas it is provided by the 24th section of the
aforesaid act, entitled ‘An act to establish the judicial courts of the
United States,’ that the laws of the several States, except where the
constitution, treaties, or statutes of the United States, shall otherwise
require or provide, shall be regarded as the rules of decision in trials
at common law in the courts of the United States, in cases where they
apply; and whereas by the laws of Virginia it is provided, that in cases
not capital, the offender shall not be held to answer any presentment
of a grand jury until the Court next succeeding that during which such
presentment shall be made; yet the said Samuel Chase, with intent to
oppress and procure the conviction of the said James Thompson Callender,
did, at the Court aforesaid, rule and adjudge the said Callender to
trial, during the term at which he, the said Callender, was presented and
indicted, contrary to law in that case made and provided.”
The charge in this article against the respondent is in substance that
he, with intent to oppress and procure the conviction of Callender, ruled
him to trial during the term at which he was presented and indicted,
contrary to the laws of Virginia, which it is alleged have provided
that in cases not capital, the offender shall not be held to answer any
presentment of a grand jury until the next succeeding Court.
This article it is admitted does contain an accusation of crime; but
I hope I shall be able to satisfy this honorable Court, that in this
instance no crime or offence was committed. I shall undertake to show
that no error in law was committed, and that if the judge had done
otherwise he would have been more liable to censure than he now is. If
this be made to appear, as a supposed illegality of his conduct is the
foundation of the charge, there will remain nothing to support the charge.
The accused judge had sworn to support the Constitution of the United
States, and to administer justice without respect to persons, and to
perform all the duties of his office according to the laws of the United
States. If in ruling Callender to trial at the same term at which he was
indicted, he acted according to law, the judge performed his duty, and
ought not to be charged with oppression.
The article may be understood as affirming, that there exists some law
of Virginia which positively prohibits the trial of a misdemeanor at
the same term at which the indictment is found. No such law has been
produced, and I must be allowed to deny that any such law of Virginia
exists. When the party appears and answers the presentment, the trial may
immediately take place. When the party appears and answers an indictment,
the trial may immediately take place, _if_ so ruled by the Court, who are
vested with a discretion unfettered by any positive statute. The defence
of this article may therefore be placed on two grounds, either of which
will be sufficient. 1st. There is no law of Virginia which prohibits the
trial of a misdemeanor at the same term the indictment is found. And,
2dly. If there be such a law, the same is not binding on the courts of
the United States, in respect to offences against the United States.
In cases where bail is requirable, to delay the trial may be used to the
oppression of the accused. It is therefore enjoined by the constitution
and by the laws that there shall be no delay. If the honorable judge, who
stands accused of trying Callender too soon, had deferred the trial to
another term, that is to say six months, and the traverser could not have
given bail, he would have been imprisoned six months without a trial.
After he was convicted, the sentence of imprisonment pronounced by the
same judge was only an imprisonment of about nine months. He had acted,
therefore, not only according to law, but with humanity, in bringing
the traverser to trial at the same term at which he was indicted. If
the trial had been postponed to another term, and Callender in the mean
time had been imprisoned, such a conduct in the Court would have given
cause of complaint against the judge, who would then have been accused of
postponing the trial of an innocent man, for the purpose of oppression.
What in such a case ought the judge to have done? Exactly what he did.
Obeying the constitution and the laws of the United States, he brought
the traverser to a speedy and public trial.
It is, may it please the honorable Court, upon these grounds that the
respondent stands justified in his conduct, in relation to the charge
contained in the sixth article of impeachment.
In the distribution of the articles of impeachment among the counsel
of the respondent, he assigned to me the 5th and 6th, and I humbly
indulge the hope that the defence which has been made will be deemed
satisfactory. But before I conclude, I hope I may be allowed shortly
to advert to some of the remarks which have fallen from the honorable
Managers in respect to this part of the accusation.
The honorable Managers have attempted to show a difference between a
presentment and an indictment, and that until the indictment was found,
a capias ought not to have been issued, even if it were lawful to issue
it upon an indictment. That there is no such distinction, I appeal to
those passages of the acts of Congress to which reference has been
already made. I appeal to the reason of the thing and to the nature of a
presentment. It is a species of indictment, an informal indictment; it is
an accusation of a grand jury. There are cases where it would be improper
in a court to wait until a presentment shall be put in the form of an
indictment. Circumstances may be such that the offender would escape if
process was not issued upon the presentment.
It has been objected that the judge misconducted himself towards the
counsel during the trial of Callender in various instances, which it
has been argued proceeded from a desire to convict and punish the
traverser, howsoever innocent. I will observe with great deference, that
if in the opinion of some gentlemen the judge did not act with becoming
politeness to the counsel, it is not a high crime or misdemeanor that
may be examined or tried in this honorable Court. But I trust, upon a
view of the circumstances as they have been given in evidence, that this
Court will be of opinion that the respondent behaved to the counsel with
sufficient propriety. One of the counsel, Mr. Wirt, offered to the Court
a syllogism, to which the honorable judge promptly replied in a technical
phrase of logic, and this excited in the audience some diversion. When
another of the counsel, Mr. Nicholas, was speaking on the favorite
topic of the right of the jury to consider the constitutionality of the
sedition law, he was not interrupted by the judge. But Mr. Nicholas has
been proved to have been always civil, always respectful to a court of
justice, consequently the Court would be civil to him. A third counsel,
Mr. Hay, who was extremely desirous, as he has himself testified, to
make an oration, not only for the purpose of satisfying the jury but the
audience that a jury had a right to judge of the constitutionality of the
sedition law, was interrupted by the judge, who denied his position. Mr.
Hay had stated other matters during the trial which appeared to the judge
to be erroneous. He had stated that a jury in this case of Callender, was
the proper tribunal to assess the fine, in which he had been corrected
by the Court; that one of the jurors, Mr. Basset, was not qualified to
serve, &c. His zeal in the cause of liberty and the constitution made
him pertinacious in some things which the judge pronounced to be errors.
It was no wonder then that such an advocate was stopped and often
interrupted by the Court. If any thing was done amiss by the judge during
the trial, it was his desiring Mr. Hay to proceed in his own way, and
promising to interrupt him no more let him say what he would; but this
circumstance plainly evinces that the interruptions did not arise from
corrupt motives. It may truly be said that Judge Chase, in his behavior
to counsel, was “all things to all men.” To the logical Mr. Wirt, he was
logical; to the polite Mr. Nicholas, he was polite; to the zealous and
pertinacious Mr. Hay, he was warm and determined. If the counsel had
conducted themselves with propriety towards the Court there would have
been no interruptions; but when the judge found that the opinions of
the bench were slighted, and that the conduct of the bar had a tendency
to mislead and influence the public mind against a statute of Congress,
he endeavored to turn their sentiments and reasoning into ridicule,
and he produced by his wit a considerable degree of merriment at their
expense, of which no doubt Colonel John Taylor, who has proved it for the
prosecutors, was, from his natural temper, a full partaker.
You are now about to set an example in a case of impeachment which will
have a most important influence in our country. It will be an example
to the tribunals in the several States who like you possess the power
of trying impeachments, and who may learn from you by what rules the
doctrine of impeachment is to be regulated. It will be a polar star to
guide in prosecutions of this kind. You are about to set an example to
the ordinary tribunals of justice in every corner of the United States.
They will know how this high Court has done justice between the House
of Representatives of the American nation and a single individual, and
hence they may learn how to do justice to the most weak and friendless
individual, when accused in their courts by the most powerful. An upright
and independent judiciary is all-important in society. Let your example
be as bright in its justice as it will be extensive in its influence.
If the people shall find that their confidential servants, the House
of Representatives, have brought forward an accusation against another
of their servants for high crimes and misdemeanors in his exalted
office, which after a fair and patient hearing has not been supported
by evidence, it will afford them pleasure to hear of his honorable
acquittal, and such, may it please this honorable Court, will be, I
trust, the result of your deliberations.
SATURDAY, February 23.
Mr. MARTIN.--Mr. President: Did I _only_ appear in defence of a
friend, with whom I have been in habits of intimacy for nearly thirty
years, I should feel less anxiety on the present occasion, though
that circumstance would be a sufficient inducement; but I am, at this
time, actuated by superior motives. I consider this cause not only of
importance to the respondent and his accusers, but to my fellow-citizens
in general, (whose eyes are now fixed upon us,) and to their posterity,
for the decision at this time will establish a most important precedent
as to future cases of impeachment.
My observations thus far have been principally with a view to establish
the true construction of our constitution, as relates to the doctrine of
impeachment. I now, Mr. President, will proceed to the particular case
before this honorable Court; and, in the first place, I agree with the
honorable Managers, that there is a manifest difference even between
the credibility of witnesses, and the credibility of testimony, for, I
admit, if witnesses are equally credible, and some swear that words were
uttered, or acts were done, and others, that they did not hear the words,
or that they did not see the acts done, the presumption is certainly in
favor of the positive, and against the negative testimony. But this must
be admitted with considerable restrictions.
If immediately after a transaction, there is a full and clear memory
of the words spoken, or the acts done, there is great reason to credit
the testimony; but, even in that case, if there are a number of persons
equally respectable, having equal opportunity to hear and see, and who
were attentive to what took place, and none of them heard or saw what is
testified by a single witness, there would be great reason to suspect
the affirmative witness to be mistaken; more so if the transactions had
happened for some years antecedent to the examination.
But, as to _Heath_, we do not contradict him _merely by negative
testimony_; we contradict him by a series of positive facts which my
honorable colleague (Mr. Key) has detailed, proved by characters, whose
_veracity cannot be doubted_, which positive facts incontestably show
that what he swore never could have taken place. And, here again, permit
me, sir, to make a further observation, that, where a person is charged
_criminally_ for words he is supposed to have uttered, those words ought
to be proved _with precision_. Every witness on _this_ occasion, who hath
been examined as to expressions used by my honorable client, either on
the one or the other charge, which are held as exceptionable, declares he
cannot pretend to recollect the express words uttered by the judge, but
only to state what at this distance of time he can consider the amount of
what was said. Nay, Messrs. Lewis and Dallas declare further, that they
cannot pretend to say with accuracy, what part of the conversation, of
which they give testimony, took place on the first or the second day, or
in what order. Such kind of testimony, therefore, ought to be received
with great caution, and not to be considered as conclusive.
Having laid down these general principles as to the relative rights and
duties of the Court, the bar, and the jury, I shall proceed with my
honorable client to the State of Pennsylvania.
It was known that John Fries, charged with treason, had, on a former
trial, been found guilty, and that a new trial had been granted upon
a suggestion, which I hope will not become a precedent, will never be
a rule for decisions. When I say this, I mean not to detract from the
merit of that highly-respectable character who presided, and who granted
the new trial. His conduct flowed, I am convinced, from his humanity;
his was the error of the heart, not of the head. It was an honest,
nay, an amiable error. My honorable client knew, when he arrived at
Philadelphia, that the trial of Fries was to take place that term. He
has been acknowledged by the honorable Managers, to be a gentleman of
the highest legal talents. In this they have only done him justice; and
have been as prodigal of their praise as his warmest friends could have
wished. It would have given me great pleasure if they had been as just in
expressing their sense of his integrity. He had been in the practice of
the law for forty years, and also a judge for a number of years, and for
about six years, I believe, presided in the criminal court of Baltimore
County, where, during that time, there were more criminal trials probably
than in any other court in America. I believe I speak moderately, when
I say, that I have attended, on behalf of the State, at least five
thousand criminal trials in that court. From those circumstances it is
to be presumed that he was not deficient in knowledge of what related
to criminal proceedings; but would he have acted the part of an upright
judge, if he had not endeavored to make himself master of the law of
treason, when a case of that nature was about to come before him;
particularly the law of treason, as it related to levying war against
the United States, or in adhering to those who levied war against them,
which is the only kind of treason that our constitution acknowledges;
although I have heard, I must own, of _treason_ against the _principles_
of the constitution, and _treason_ against the _sovereignty_ of the
people--words well enough suited to a popular harangue, or a newspaper
essay, but not for a court of justice.
When Judge Chase arrived at Philadelphia he had the advantage of perusing
the notes of Judge Peters and the district attorney, relating to the
former trial; he thereby became well acquainted with all the points at
that time made by the counsel for Fries; and Mr. Lewis has sworn, that
all the points which were intended to have been made before Judge Chase,
had been made at the former trial. Why then should the Court either wish,
or be obliged to hear counsel again on the law? In two previous cases
the law had been settled. Judge Patterson, a gentleman of the first
abilities, mild and amiable, whom no person will charge of being of a
vindictive, oppressive disposition, and who certainly has more suavity
of manners than my honorable client had, after a most patient and full
hearing, where eminent counsel attended, decided the law as it was
decided by the respondent. Judge Iredell, whose encomium has been most
justly given us by the Managers, a gentleman of great legal talents,
than whom no worthier man has left this for a better world; and who,
while living, honored me with his friendship, after having heard Messrs.
Lewis and Dallas, and after full and patient investigation, gave, in the
case of Fries himself, a similar decision; in both which opinions Judge
Peters perfectly coincided. Under these circumstances, Judge Chase, who
had no doubt of the propriety of those decisions, to prevent waste of
time when there was so much business to transact, and to facilitate the
business, thought it best to inform the counsel on each side, that the
Court considered the law to be settled, and in what manner. For which
purpose they delivered to the clerk three copies of their opinion, one
for the counsel on each side, the third to be given to the jury, when
they left the bar. On this subject, Mr. Lewis, in his testimony, said it
was to be given to the jury when the counsel of the United States had
opened, or after he had closed the pleadings, but he believed the last.
Mr. Rawle is clear that it was to be given to them, when the case was
finished, to take out with them.
No gentleman on behalf of the impeachment has denied the correctness of
this opinion. But the criminality of the judge is, we are told, not in
the opinion itself, but in the _manner_ and the _time_ in which it was
given.
Was there any thing improper that the opinion should be reduced to
_writing_? Why are opinions given? Surely to regulate the conduct
of those to whom given; for this purpose they ought to be perfectly
understood, and in no degree subject to misconception; delivering the
opinion, _in writing_, greatly facilitates these objects; if, therefore,
it was _proper_ to give an opinion, it was _meritorious_ to reduce it
to writing, and Judge Chase, in so doing, most certainly acted with
the strictest propriety. And, unless a court of justice is bound to
sit and hear counsel on points of law, where they themselves have no
doubts, before they give their opinion, my honorable client could not
be incorrect in delivering it at the time when it was delivered. If the
opinion was _proper_, how, I pray, could any _injury_ be done to Fries
by its being delivered? The honorable Managers say, it was intended to
influence the jury. In the first place, this assertion is not supported
by the evidence. When the paper was thrown on the clerk’s table, not one
word was said of its contents; nor did the Court declare any opinion
on Fries’s case. They only determined the indictment correct in point
of form, and not liable to be quashed. They determined that the overt
acts stated were overt acts of treason, if Fries had committed them, but
whether Fries had committed those acts remained for the jury to determine
upon the evidence; as to that part of the case the Court gave no opinion.
But the honorable Managers have told us that Judge Chase must have known
what were the facts in the case, because they had been disclosed in the
former trial. And I pray you, sir, if he had the knowledge, could it
_alter the law in the case_, or render the declaration of what the law
was _more improper_? But, as a new trial was granted, the judge could not
know what additional evidence might be brought forward to vary the case
from its former appearance.
But if the opinion had been publicly read and known, how could it have
_injured_ Fries? He was to have an _impartial_ trial. What is the meaning
of these expressions? It is a trial according to law and fact, in which,
if he is proved innocent, he shall be acquitted; if guilty, convicted.
If, then, the opinion was agreeable to law, it could not prevent, it
could not interfere with his having an impartial trial. If in any case a
person is acquitted, when the facts are clearly proved, and the law is
against him, it must be because he has had a _partial_, not an _impartial
trial_.
Well, be it so, and let us consider the trial of Fries as if it had
been conducted on that principle. The judges, with their minds like
this white sheet of paper, were to sit still and suffer the counsel to
scrawl thereon whatever characters they pleased, to blot and to blur it,
until they were perfectly satisfied. After this ceremony, the judges,
examining the impressions thus made upon the antecedent clean sheet,
were from these, and these _only_, to form their opinion of the law; and
this opinion, having been thus formed from nothing but what occurred
_during_ the trial, and _after_ the jury were sworn, would not be called
a prejudicated opinion, and therefore, I presume, would be perfectly
satisfactory to the honorable Managers. So far we should have done very
well as it related to the trial of Fries. But next day another criminal
is to be tried for a _similar_ offence; Messrs. Lewis and Dallas are not
his defenders. Getman has selected Mr. Tilghman for his counsel. How, I
pray you, are the judges to be qualified to preside with propriety in
this trial? Yesterday they gave a solemn determination in Fries’s case
upon the _same_ question of law which now must come forward in the case
of Getman. Mr. Tilghman was not then heard. The opinion then given is,
as _to Mr. Tilghman and his client_, as much a prejudicated opinion,
an opinion as contaminating to the hands of a lawyer to receive, and
as highly criminal for a court to give, as was the opinion given by my
honorable client. What can be done? The minds of the judges are _no
longer a pure unsullied sheet of paper_. Yesterday, in the trial of
Fries, they had been scrawled upon and sullied by Lewis and Dallas;
the impressions still remain. I, sir, can think of no remedy in this
difficulty, except that the judges should be supplied with a reasonable
quantity of _India rubber_, or something which will answer in its place,
with which they might wipe off and erase every impression which had been
made the day before by Lewis and Dallas, during the trial of Fries;
and thus _once more_ take their seats on the bench for the trial of
Getman, with minds again like clean sheets of white paper, ready to be
again scrawled over, again to be blotted and blurred at the pleasure
of Mr. Tilghman, and from these scrawls, blots, and blurs, and from
these _alone_, to take their impressions as to the law, and form their
decision as to Getman’s case, without regarding, or even _remembering_
the decision they had given the day before; and in this manner to proceed
in every case that might come before them successively in their judicial
capacity.
I shall conclude what relates to this article by observing that the
conduct of Fries’s counsel to the Court on that trial was such as
nothing can excuse. It can only be palliated by the reflection, that
for his crimes he was liable to suffer death. Feelings of humanity and
compassion, independent of interest, might excite in their bosoms an
earnest anxiety to save his life; this may serve to mitigate censure;
but even those feelings, however amiable, ought not to be gratified at
the expense of national justice, nor by an endeavor to stamp upon judges
of uprightness and integrity the dishonorable charge of partiality and
oppression. I fear, sir, I have been tedious on this article; but it will
be considered that, whatever may be my own sentiments of the futility
of any part of these charges, I cannot determine how far this honorable
Court may correspond with me in sentiment; nor can I do otherwise than
treat, as of consequence, any charge brought forward by the honorable
House of Representatives, or not consider it as being of importance.
The second article goes on to charge Judge Chase with overruling the
objection of John Basset, who wished to be excused from serving on the
jury in the trial of Callender, and causing him to be sworn, and to serve
on the said jury by whose verdict Callender was convicted.
This article requires a discussion of the law relating to challenges of
jurors, and whether Mr. Basset was legally sworn on that jury. And here
again, as well as in the case of Fries, I meet with the most perfect
novelties, for except in those trials I never heard of jurors, when
called to be sworn, examined on oath whether they had formed, or formed
or delivered, or whether they had formed and delivered an opinion on the
subject about to be tried. And here also let me observe, that there is no
just grounds for the charge that Judge Chase from partiality administered
the oath differently in Callender’s case from the manner in which he
administered it to the jurors in the case of Fries; for Mr. Rawle,
referring to his notes taken at the time, has told us that in the case of
Fries, one or two of the first jurors were only asked whether they had
formed an opinion, after which the question was put whether he had formed
_or_ delivered an opinion, but ultimately the question asked was, whether
they had formed _and_ delivered an opinion, which question was put to the
greater part of the jurors; so that the interrogatory _ultimately_ fixed
upon in the case of Fries, is the same which was put to all the jurors
who were interrogated in the case of Callender.
I have, Mr. President, been in the practice of the law for thirty
years. Before the Revolution I attended, two or three years, the two
counties on the Eastern Shore of Virginia--Sussex County in Delaware,
and Somerset and Worcester in Maryland; since the Revolution I have
constantly attended the general courts on the Western and Eastern Shores
of Maryland, and the civil and criminal courts of Baltimore County, and
for about six years several other counties in Maryland. In the whole
course of my practice, I have never known a single case, either civil
or criminal, in which the jurors have been, when called to the book,
demanded to answer upon oath either of the aforesaid questions which the
defendant’s counsel requested to be put to them.
If either party choose to challenge a juror for favor, on account of
declarations made by the juror, the only ground for it is that he has
used expressions showing his determination to decide for one party or the
other without regard to truth and justice. In which case the party makes
his objection to the particular juror, specifying the expressions uttered
by the juror indicative of such improper determination, and produces
witnesses to establish his objection; for the juror cannot be examined
on oath to substantiate the charge; and, unless by mutual consent, the
objection made must be decided, not by the Court, but by triers. And the
only matter to be decided is, whether the juror has made any declaration
of a design to give a verdict one way or the other, whether right or
wrong; for if the juror made the declarations from his knowledge of the
facts in the case, this would be no cause of challenge, nor any objection
to his being sworn on the jury. And as the juror himself against whom
such objection is made cannot be examined on oath, it follows, of
course, he cannot be challenged for having formed an opinion, but only
for having delivered it, as third persons cannot know of an opinion
being formed but by its having been delivered. And, as I have observed
already, even the delivery of an opinion is no cause of challenge, if it
appears to have been founded upon the juror’s knowledge of facts, and
not from partiality. In consequence of this principle of law, it can be
no objection against a juror being sworn, even though he should have the
most perfect knowledge of every fact relative to the issue, to try which
he is about to be sworn; on the contrary, the principal reason assigned
why trials ought to be by jurors from the vicinage, is the presumption
that they will be best acquainted with the facts which will be put in
issue for their decision.
I now come, Mr. President, to the third article, wherein my honorable
client is criminally charged for the rejection of the evidence proposed
to be derived from Colonel John Taylor.
In this part of the case the facts are admitted. The next question of
law, therefore, which presents itself for discussion is, whether or not
Col. Taylor’s evidence ought to have been received, or was properly
rejected. Here again I must observe that the honorable Managers, to
support their charge, resort to principles which are to me, to the last
extremity, strange and novel. We are told that the Court have no right to
order questions which are meant to be put to a witness to be reduced to
writing. Nay, that the Court have no right to know what evidence is meant
to be given by the witnesses, or its connection with other testimony, or
its bearing on the cause, but to receive it drop by drop, as the counsel
think proper to deal it out. In answer to these extraordinary ideas which
we have had thus introduced, I must be permitted to assert that the Court
have, in my opinion, an undoubted _right_ to require of the counsel that
they should open their case, explain the nature of the evidence meant to
be given, and on the production of a witness, state what they expect to
prove by such witness. In the course of my practice it has been the usual
method of proceeding for counsel to conduct themselves in this manner,
and on this subject McNally, in his rules of evidence, page 14, expressly
lays it down as a _rule_, “that counsel ought not to call a witness
without first opening to the Court the nature of the evidence they intend
to examine into. This has been _often solemnly adjudged_, though _not
strictly adhered to in practice_.” And in page second he gives us as the
_first_ rule, “that no evidence _ought to be admitted to any point_ but
that on which the issue is joined.” But how is a court to prevent, and
it is only the Court which can prevent, evidence being admitted which
is not pertinent to the point on which the issue is joined, unless they
are first informed what evidence is meant to be given? It is then upon
the authority of McNally established that the Court have the legal right
to know what counsel mean to prove by a witness; and having that right,
they may exercise it whenever, in their discretion, they may think it
necessary.
Let us now examine the set of words to which Colonel Taylor’s evidence
was meant to apply; they were without any innuendo, as follows: “He was
a professed aristocrat; he had proved faithful and serviceable to the
British interest.”
This sentence consists of two separate distinct clauses or parts; the
first, that “he was a professed aristocrat;” the second, that “he had
proved faithful and serviceable to the British interest.” I ask this
honorable Court if either of these clauses or parts, of themselves, and
without an innuendo, carry with them any charge of criminality, or any
thing libellous? To say that a man is an aristocrat, a democrat, or a
republican, is not of itself charging the person with any thing criminal,
nor is it slanderous, unless indeed the charge is accompanied with an
innuendo, stating that, by the epithet so _used_, something very bad was
intended; and _that_ government would indeed merit contempt in which a
person should be punished upon such a charge. So, also, to say that a
man had been faithful and serviceable to the British interest charges him
with nothing criminal, and therefore cannot be slanderous, because the
British and the American interest in many instances have been and may be
the same.
There may be a variety of instances in which the interest of two nations
may concur. There have been many in which the interest of America and of
Britain did concur; many also in which the interest of America and France
have combined. In the first instance a man may have been faithful and
serviceable to Britain, in the other to France, without the violation of
any duty to the United States--without having been guilty of the least
criminality.
The sentence then taken altogether, connecting the two clauses, does not
of itself import any thing criminal, and consequently is not slanderous,
if it remained without any innuendo; and if it was free from an
innuendo, being not slanderous, would not require any evidence relative
thereto. Nay, it would be no part of the charge put in issue, for in
legal construction it is only such part of the publication stated in an
indictment which is slanderous; that is the point in issue.
As to the second question, to wit: “Whether Mr. Adams, while Vice
President, had expressed his disapprobation of the funding system?” the
question could not be in any degree relevant to the one or the other
clause in the sentence. Whether Mr. Adams expressed his disapprobation,
while he was Vice President, of the funding system, or not, could in no
respect go to prove or disapprove his being a professed aristocrat, or
his having sacrificed the interest of the United States to the interest
of Great Britain. The Court, therefore, considering this question totally
irrelevant to the “point in issue,” did as was their duty to do, they
refused to suffer it to be put to the witness.
So much for the two first questions. We now come to the third, respecting
the votes of Mr. Adams, when Vice President, against the bill for the
sequestration of British debts, and the bill for suspending intercourse
with Great Britain. For the conduct of my honorable client in refusing
to permit this question to be put to Colonel Taylor, two reasons may be
assigned; the first, that if the fact was as stated, it could not be
proved by Colonel Taylor. The second, that if the fact was established it
would be totally immaterial to the issue; Colonel Taylor’s evidence was
not the best which the nature of the case admitted. I will not say that
the traverser, in order to prove this vote, was under the necessity of
procuring a copy from the Journal of the Senate, properly authenticated
by their clerk, but he certainly ought at least to have produced a
printed copy of the votes and proceedings of the Senate, as published
by them. One thing at least is certain, that the traverser could not,
consistently with rules of law, give parol evidence to establish the
vote of Mr. Adams, and therefore that Colonel Taylor could not be
legally examined on that subject. But I will go further in defence of my
client, and will say, that if they had had the best possible evidence
of the fact, if they had had an attested copy from the records of the
Senate, the judge would have departed from his duty if he had permitted
the evidence which was wished to have been obtained from Colonel Taylor
to have been given to the jury. Ought any evidence to be given to a
jury which is not proper and pertinent to prove the _fact in issue_, or
to prove some fact from which the fact in issue _ought_ legally to be
_inferred_--evidence not relevant to the point before the Court and jury?
Was not, as to this part of the charge, the fact in issue, whether Mr.
Adams had swerved from his duty by intentionally prostrating the interest
and welfare of his country to the interest and welfare of Great Britain?
Should not a charge of so atrocious a nature be proved by some direct act
of this criminal sacrifice of the interests of the United States to the
interest of Great Britain, or by the proof of some other act from which
such criminal sacrifice must and ought on principles of law to be clearly
and necessarily inferred? And what was the proof proposed to be offered
for the purpose? That upon the question whether British debts should be
sequestered, and whether our intercourse with Great Britain should be
suspended, after full discussion one-half the members of the Senate voted
in favor of those measures, and one-half of the Senate against them;
and that in this situation Mr. Adams, thinking them of too hazardous a
nature, and such as might involve our country in a war, did not choose to
take upon himself so great a responsibility as to give his casting voice
in the affirmative.
I shall now, sir, proceed to the fourth article, which charges the
respondent’s conduct to have been marked during the whole course of the
trial by manifest injustice, partiality, and intemperance.
From the evidence it certainly appears that Judge Chase prevented
the counsel from arguing to the jury that the sedition law was
unconstitutional; and this seems to have given rise to a great portion of
the altercation and ill-humor between the Court and the bench.
I admit that the constitution gives to a criminal the right of having
counsel; but the constitution has not defined the rights or duties of
counsel, or to what extent they are to exercise them. One thing, however,
is certain; that they have no constitutional right to impose upon the
Court or mislead the jury.
When Callender’s counsel contended that if the jury have a right to
decide questions of law, then the constitution being the supreme law
of the land, the jury must of course have the power of deciding on the
_constitutionality_ of a law; the judge might well say it was a _non
sequitur_.
What has been allowed to the jurors as their incidental right on the
general issue? Not to decide whether there is an existing law, or
whether a law is in force, but to declare the true construction of an
_existing_ law, and whether the case at issue comes within the true
construction of such law.
But those who contend that the jury have a right to determine the
constitutionality of a law, insist not for the power of the jury to
decide its true construction and whether the prisoner’s case comes
within it, but to decide whether what is produced as law is not void, a
mere nullity, a dead letter; or in other words, whether such a law is
in existence. The maddest enthusiasts for the rights of jurors, their
most zealous advocates, have never contended for such a right before
the cases of Fries and Callender. Whether a law exists, whether a law
has been enacted, whether a law has been repealed, whether a law has
become obsolete or is in force? The decision of these questions hath
always been allowed the exclusive right of the Court. The power of the
Court to decide exclusively upon these questions hath never been before
controverted. Nay, the very right claimed on behalf of jurors, that they
may determine what is the true construction of the law, and whether the
case is within its provisions, of itself necessarily presupposes, and is
predicated upon the _existence of a law_, the _construction or meaning of
which_ they are to determine. It has indeed been seriously questioned,
and that by gentlemen of great abilities, whether even the Judiciary
have a right to declare a law, passed by the Legislature, to be contrary
to the constitution and, therefore, void! I shall not enter into an
examination of that question, but I have no hesitation in saying that
a jury have no such right, that it never was intended they should have
such right, and that if they had the right, we might as well be without a
constitution.
The first specific instance of my client’s unjust, partial, and
intemperate conduct, which is stated in this fourth article is, that he
compelled the traverser’s counsel to reduce to writing the questions
which they meant to propound to Colonel Taylor. The correctness of this
procedure will depend on the question whether the Court had by law
such a power, for if such a power was possessed by them, it is to be
presumed that they, on that occasion, exercised it according to their
best discretion, nor can it be inferred that their conduct was criminal,
because the procedure was _novel_ in Virginia. There are cases in which
the practice of a court may be considered the law of the court; but these
are not in any manner analogous to the case in question; nor do I find
the _practice_ of the State courts is obligatory “in any case of this
kind on the courts of the United States.” My honorable client did not
consider what was usual in Virginia, but what was correct and proper;
he knew that the law authorized him to make this demand. In Maryland,
where he imbibed his legal knowledge, and where at the bar and on the
bench he had carried it into practice, nothing was more common than
for questions to be reduced to writing at the request of counsel, or
at the request of the Court. If counsel doubt of the propriety of the
evidence meant to be drawn from the witness, or the correctness of the
question meant to be propounded to him, they have a right to request
it to be reduced to writing. So also, if the Court, without whose
approbation no testimony can be given to a jury, and whose duty it is
to prevent improper testimony to be given, has reason to suspect an
intention to introduce such evidence, they have a right, and they ought
to require the questions to be reduced to writing, that there may be no
misapprehension of the tendency of the question, and that they may more
deliberately decide whether it is proper to be put to the witness. And
in this case, the counsel were not required to reduce their questions to
writing in the first instance, or before they had stated what they had
meant to prove, as hath been suggested. When Colonel Taylor was called
and sworn, the Court desired to be informed what they meant to prove by
him. McNally is an authority that in so doing they acted legally. The
counsel stated the facts, to prove which Colonel Taylor was called; upon
which, the Court doubting the admissibility of the testimony directed the
question to be reduced to writing for their consideration. It cannot for
a moment be seriously contended, but that the Court had a right so to
do. As my respectable colleague (Mr. Key) has observed, the practice of
this honorable Court during this trial, hath perfectly sanctioned that
part of my client’s conduct. If at any time a question has been put,
the propriety of which hath been doubted, it has been directed to be
reduced to writing. It is true, that this has been, principally, when an
objection has been made by the counsel; but there can be no doubt, that
if any honorable member of this Court had apprehended the question to
be improper, the Court would have had a right, and would have directed
the question to be propounded in writing for their consideration. The
propriety, the principle, in each case is the same. On this part of the
charge I need not dwell any longer.
The _next instance_ of the judge’s conduct specified in this article
is his refusal to continue Callender’s case to the next term,
notwithstanding the affidavit filed, and the applications made. On
this subject, I shall not make many observations as to the law; but I
may venture to assert that the conduct of Judge Chase in this instance
also appears to have been free from any corrupt or oppressive motive or
design; no part of his conduct on this occasion has been produced to show
that he entertained a disposition to prevent Callender from obtaining
the testimony of his witnesses, or deprive him of the necessary time to
procure their attendance. Let it be recollected that the first affidavit
prepared and proposed to be filed in order to obtain a continuance of
the cause was a general affidavit. By the laws of England a general
affidavit is not sufficient to entitle the party to a continuance, and
upon principles of law as adopted in England and the United States, at
least in Maryland, a supplemental affidavit cannot in a case of this
nature be received.
If, then, Judge Chase had wished that Callender should have been, at all
events, prevented from a continuance of his cause, he would have suffered
them to file their general affidavit.
Why should capital cases, rather than inferior crimes, be tried at the
first court? The honorable Managers admit that it is the general rule
not to continue, but to try at the first term, capital cases. Surely if
indulgence, if delay is necessary in any case, it is in a capital case,
where life is at risk; where an injury, if done, is irretrievable!
There are many reasons which show the propriety that prosecutions of
every kind should be decided with as little delay as possible. One of the
principles as to criminal jurisprudence, as Governor Claiborne has justly
observed, is, that though punishments should be mild, yet they ought to
be _speedy_; by having an immediate decision there is a great certainty
that the criminal shall not elude justice by flight.
The next specification, in this article, of improper conduct in
the judge, is, that he “used _unusual_, _rude_, and _contemptuous
expressions_ towards the prisoner’s counsel; and insinuated that they
wished to excite the public fears and indignation, and to produce that
insubordination to the law, to which the conduct of the judge did at
the same time manifestly tend.” As to this part of the charge, there
is but little of a legal nature contained in it, I shall, therefore,
hastily pass over it. If true, it seems to be rather a violation of the
principles of politeness, than of the principles of law; rather the want
of decorum, than the commission of a _high crime and misdemeanor_. I will
readily agree that my honorable client has more of the “_fortiter in
re_,” than the “_suaviter in modo_,” and that his character may in some
respects be considered to bear a stronger resemblance to that of Lord
Thurlow than to that of Lord Chesterfield; yet Lord Thurlow has ever been
esteemed a great legal character, and an enlightened judge.
But let me ask this honorable Court whether there is not great reason
to believe that the sentiments my honorable client expressed with
respect to the conduct of the counsel, and their object, was just and
correct? What was the conduct of Callender’s counsel? Was it not such
as immediately tended to inflame the minds of the bystanders, and to
excite their indignation against the Court, and highly insulting to the
judges? In the first place, they endeavored to obtain a continuance of
the cause to the next court, merely with an intention to procure delay,
and to prevent the cause being tried before Judge Chase, acknowledging
that they had no hopes or expectation from _any testimony_ to save their
client if the law was determined to be constitutional; and yet they
brought forward their client to swear just what they pleased, in order
to procure this delay, with respect to the necessity of witnesses, whose
testimony they acknowledged they were conscious could be of no service
to them, and yet they wished the bystanders to consider the Court acting
highly _improper_ for not granting that continuance? Was this even to
serve Callender? No, they avow they did not appear to serve him, but to
serve _the cause_. Sir, it appears from their own evidence that Callender
would have submitted to the Court, but for their interference; that
they volunteered on the occasion not for _him_, but for _their cause_;
and yet the volunteers wanted the Court to give them to another term to
prepare themselves, and made Callender swear what they pleased to effect
their purpose. They said they were not well acquainted with the law upon
libels, and therefore wanted time to examine the subject; but surely when
persons undertake to volunteer their services on any subject, they ought
to be masters of it, and are entitled to no indulgence of delay. And as
they declare they had formed the determination, on the first instance of
an indictment under the sedition law, to come forward and volunteer their
services for the sake not of the man, but of their cause, common decency
to the Court, and a proper respect for themselves, ought to have dictated
to them in the interim to have made themselves fully acquainted with
all the law relative to that subject in which they had thus determined
officiously to interpose.
When my honorable client went from Baltimore to Richmond, to hold the
circuit court, he knew how violently that State was opposed to the
enforcement of this law; but he equally knew that it was his duty to
carry it into execution, without regard to the sentiments of any portion
of the community, or however disagreeable it might be to them. Under
these circumstances he went to Richmond, and found the counsel, from
the first step in this cause, attempting, as he could not but consider
it, to inflame the audience and excite their indignation against him.
My honorable client, who well knows mankind, and has been accustomed to
popular assemblies, appears to have been anxious, as his best security,
to keep the bystanders in good humor, and to amuse them at the expense
of the very persons who were endeavoring to excite the irascibility of
the audience against him. Hence the mirth, the humor, the facetiousness,
by which his conduct was marked during the trial; and which, most
fortunately, was attended with the happy consequence he hoped from it,
for it is admitted that he kept the bystanders in great good humor, and
excited peals of laughter at the expense of the counsel, as the witness
very justly concludes, for he says, “the counsel did not appear to join
in the laugh.” And this, sir, most satisfactorily accounts for the more
than usual exertion of his facetious talents on the trial of Callender;
and I doubt not was the real cause of that exertion.
But the judge is also charged with great rudeness in the manner in which
he replied in one part of the argument to Mr. Wirt, just at a time when
that gentleman had finished a syllogism, by replying that it was a _non
sequitur_. I will state the transaction: Mr. Wirt having, as he supposed,
established the position, that the jury had a right to decide the law as
well as the fact, he proceeded to state that the constitution was the
supreme law of the land, and, therefore, that since the jury had a right
to decide the law, and the constitution was also the law, the jury must
certainly have a right to decide the constitutionality of a law made
under it; and this conclusion was, as he declared, perfectly syllogistic.
As Mr. Wirt had assumed the character of a _logician_ in his argument,
nothing could be more natural than for the judge, in his answer, to
assume the _same character_; he therefore replied, like a logician,
“A _non sequitur_, sir”--the correct answer to a syllogism which is
rather lame in its conclusion. But it seems this answer was accompanied
by a _certain bow_. As _bows_, sir, according to the manner they are
_made_, may, like _words_, according to the manner they are _uttered_,
convey very different meanings; and as it is as difficult to determine
the merit or demerit of _a bow_ without having seen it, as it is the
expression of words without having _heard_ them; to discover, therefore,
whether there was any thing _rude_ or _improper_ in this _bow_, I could
have wished that the witness, who complained so much of its effect,
had given us a _fac simile_ of it. Had we been favored not only with
the answer, but also with a complete _fac simile_ of the _bow_, we
might have been enabled to have judged of the propriety of my honorable
client’s conduct in this instance. But it seems this _bow_, together
with the “_non sequitur_,” entirely discomfited poor Mr. Wirt, and down
he sat “and never word spake more!” If so, it was a saving of time.
But we have no proof that Mr. Wirt meant to have proceeded any further
in the argument, even had he not been encountered with this formidable
bow and non sequitur. And the presumption is, that having condensed the
whole force of his argument into a syllogistic form, and, finding his
syllogism did not produce the conviction intended, he took his seat
without wishing to spend more of his breath in what, after the failure
of his logical talents, he no doubt considered a fruitless attempt.
Mr. Nicholas followed Mr. Wirt. He is a gentleman mild and polite in
his manners; he was treated by the Court with politeness. He did not
_persist_ in addressing the jury contrary to the decisions of the Court;
he, therefore, met with no interruptions.
But, sir, there is another charge which has been made against my
honorable client, to justify that part of the article which accuses
him of _rudeness_. It is said that speaking of Callender’s counsel, or
addressing himself to them, he called them “_young gentlemen_.” To me
it appears astonishing that these expressions, if used by the judge,
should be thought reproachful to the counsel, or a proper subject of
a criminal charge; and it gave me real pleasure to find that Mr.
Nicholas, whose whole conduct marks him as a gentleman, did not consider
them as offensive. He has observed that he was young at the time, and
whoever has seen him as a witness, must be convinced of the truth of his
assertion. But we are told that Mr. Wirt was at that time about thirty
years of age, had been a married man, and was then a widower. It doth
not appear that Judge Chase knew of these circumstances; but if he had,
considering that Mr. Wirt was a widower, he certainly erred on the right
side, if it was an error, in calling _him_ a _young_ gentleman. But,
sir, let it be considered that my honorable client has been stated by
the honorable Managers, to be nearly threescore and ten, let also his
great legal attainments be considered, and let me ask, if any person can
think his addressing gentlemen, so much inferior to himself in age and
knowledge, by the epithet of “young gentlemen,” offensive to them, much
less criminal as to the public? But as another instance of his rudeness
we are told, that, addressing himself to Mr. Wirt, who observed that “he
was going on,” the judge replied, “No, sir, I am going on, therefore sit
down, sir.” This address was made by the judge to Mr. Wirt, when he (the
judge) was about to give a long opinion to him and the counsel employed
with him, which opinion, upon Mr. Wirt’s sitting down, the Court did
give; and pray, sir, was there the least impropriety in a situation of
that nature, that the Court should desire the counsel to be silent and to
take their seats?
Before Judge Chase went from Baltimore to hold the circuit court at
Richmond, he knew that the sedition law had been violated in Virginia.
I had myself put into his hands “The Prospect before Us.” He felt it
his duty to enforce the laws of his country. What, sir, is a judge in
one part of the United States to permit the breach of our laws to go
unpunished because they are there unpopular, and in another part to carry
them into execution, because there they may be thought wise and salutary?
And would you really wish your judges, instead of acting from principle,
to court only the applause of their auditors? Would you wish them to be
what Sir Michael Foster has so correctly stated, the most contemptible
of all characters, popular judges; judges who look forward, in all their
decisions, not for the applause of the wise and good, of their own
consciences, of their God, but of the rabble, or any prevailing party? I
flatter myself that this honorable Senate will never, by their decision,
sanction such principles! Our Government is not, as we say, tyrannical,
nor acting on whim or caprice. We boast of it as being a Government of
laws. But how can it be such, unless the laws, while they exist, are
sacredly and impartially, without regard to popularity, carried into
execution? What, sir, shall judges discriminate? Shall they be permitted
to say, “This law I will execute, and that I will not; because in the
one case I may be benefited, in the other I might make myself enemies?”
And would you really wish to live under a Government where your laws
were thus administered? Would you really wish for such unprincipled,
such time-serving judges? No, sir, you would not. You will with me say,
“Give me the judge who will firmly, boldly, nay, even _sternly_, perform
his duty, equally uninfluenced, equally unintimidated by the “_Instantis
vultus tyranni_,” or the “_ardor civium prava jubentium_!” Such are
the judges we ought to have; such I hope we have, and shall have. Our
property, our liberty, our lives, can only be protected and secured by
such judges. With this honorable Court it remains, whether we shall have
such judges!”
MONDAY, February 25.
Mr. HARPER.--It was greatly to be desired, Mr. President, and might have
been confidently expected, that in a case every way so important, where
it so greatly concerns the public happiness that the decision should
command the public confidence, nothing would be presented to the view
of this honorable Court in aid of the prosecution, except the law which
ought to govern the decision, and the proofs relied on for supporting the
allegations.
But it has not so seemed good to the honorable Managers. They have
thought proper to introduce into the discussion, the political opinions
and party connections of the respondent, for the purpose of throwing
a shade of doubt over his motives and of establishing inferences
unfavorable to his character. How far this conduct ought to be commended,
it is not for me to decide. My confidence in the justice and discernment
of this honorable Court forbids me to apprehend that it can be successful.
But since these opinions and connections have been introduced, permit me
to use them for a different purpose.
The duty imposed on judges is at all times delicate, and in criminal
cases, where life or liberty may be affected, where reputation, dearer
than both, depends on the issue, this duty becomes peculiarly arduous and
painful to an honorable and generous mind. But if there be a situation
more delicate, more embarrassing than every other to such a mind, it is
that of a judge sitting on the trial of a person who, from political
opposition, or any other cause, may have excited hostile or angry
feelings in his mind. It is then that he most fears to trust himself. It
is then that he most dreads the influence of his passions in misleading
his judgment. It is then that he feels the strongest alarm for his
reputation, lest he should possibly afford ground for the suspicion
that he had gratified his resentments under the semblance of executing
the law. Hence he constantly leans towards the side of the accused, and
requires the clearest conviction before he condemns. Hence he rejects
all doubtful or contradictory testimony, lays out of the case all little
indiscretions and slight shades of suspicion; and is rigid in requiring
from the prosecutors the unequivocal proof of unequivocal offences. That
his enemy is in his power, is always a reason for the utmost forbearance.
The fear that he may possibly be misled by his passions, is always a
reason for acquittal, where doubt can exist.
Need I invoke these noble and generous sentiments in the breasts of this
honorable Court? No! my heart tells me I need not. I see on those benches
distinguished soldiers and eminent statesmen, who have triumphed alike in
the fields of politics and war, and who always disdained to tarnish their
laurels by the blood or humiliation of a vanquished foe.
If, then, the person now arraigned at your bar be connected with a
political party in opposition to any of those who sit as his judges; if
it were possible that, in promoting the views of that party, he may have
excited feelings of anger or resentment in the mind of any member of this
honorable tribunal; if it were possible that any portion of the angry
passions engendered by the conflicts of party could find a place within
these hallowed walls, and could attach itself to him who stands upon his
trial at this bar, the existence of such a possibility would furnish
every member of this honorable Court with the strongest motives that can
operate on a generous and noble mind, for leaning constantly to the side
of the accused, and for pronouncing in favor of an acquittal, wherever
there remains a doubt of guilt.
Attempts have also been made to enlist the sympathy of this honorable
Court on the side of the prosecution, and for this purpose, a criminal
twice convicted, who did not hesitate to risk civil bloodshed in support
of political theories, and is now indebted for his life to the clemency
of that Government against whose laws he armed his ignorant and misguided
neighbors, is presented to view, decked out in all the ornaments which
rhetoric can bestow. We, Mr. President, disclaim the aids, and protest
against the interference of rhetoric and sympathy. However proper in
other situations, they ought to be excluded from courts of justice, whose
decisions should be governed by truth and not by feeling.
But if sympathy could find a place in this tribunal, what object more
fit to awake it than that now presented at your bar? An aged patriot
and statesman, bearing on his head the frost of seventy winters, and
broken by the infirmities brought upon him by the labors and exertions
of half a century, is arraigned as an offender, and compelled to employ,
in defending himself against a criminal prosecution, the few and short
intervals of ease allowed to him by sickness. Placed at the bar of a
court, after having sat with honor for sixteen years on the bench, he is
doomed to hear the most opprobrious epithets applied to his name by those
whose predecessors were accustomed to look up to him with admiration and
respect, and whose fathers would have been proud to have been numbered
among his pupils. His footsteps are hunted from place to place, to find
indiscretions which may be exaggerated into crimes. The jests which,
flowing from the gayety and openness of his temper, were uttered in the
confidence of private conversation; the expressions of warmth produced
by the natural impetuosity of his character, are detailed by companions
converted into spies and informers, and are adduced as proofs of criminal
intention.
This cup, so full of bitterness for one who has been accustomed for forty
years to fill the most honorable stations in his country, he drinks to
the dregs without complaining. In this sad reverse, he supports himself
with a calmness, a fortitude, and a resigned dignity which melt the
hearts of those who are not his enemies, and extort the respect of those
who are.
If sympathy must be excited, here let it find a nobler object. If from
generous breasts it cannot be excluded, let it be turned towards
“A brave man struggling with the storms of Fate,”
and greatly supporting himself under a pressure of evils the most
afflicting that an elevated mind can know.
Not content with endeavoring to blow up a flame of party spirit against
the respondent, and to engage sympathy in the ungracious, and to her
unnatural, task of aiding a criminal prosecution, the honorable Managers
have resorted to a principle as novel in our laws and jurisprudence as
it is subversive of the constitutional independence of the judicial
department, and dangerous to the personal rights and safety of every
man holding an office under this Government. They have contended “that
an impeachment is not a criminal prosecution, but an inquiry in the
nature of an inquest of office, to ascertain whether a person holding
an office be properly qualified for his situation; or, whether it may
not be expedient to remove him.” But if this principle be correct--if
an impeachment be not indeed a criminal prosecution, but a mere inquest
of office--if a conviction and removal on impeachment be indeed not a
punishment, but the mere withdrawal of a favor of office granted--I ask
why this formality of proceeding, this solemn apparatus of justice,
this laborious investigation of facts? If the conviction of a judge on
impeachment is not to depend on his guilt or innocence of some crime
alleged against him, but on some reason of State policy or expediency,
which may be thought by the House of Representatives, and two-thirds
of the Senate, to require his removal, I ask why the solemn mockery of
articles alleging high crimes and misdemeanors, of a court regularly
formed, of a judicial oath administered to the members, of the public
examination of witnesses, and of a trial conducted in all the usual
forms? Why not settle this question of expediency, as all other
questions of expediency are settled, by a reference to general political
considerations, and in the usual mode of political discussion? No! Mr.
President! This principle of the honorable Managers, so novel and so
alarming; this desperate expedient, resorted to as the last and only
prop of a case, which the honorable gentlemen feel to be unsupported by
law or evidence; this forlorn hope of the prosecution, pressed into its
service, after it was found that no offence against any law of the land
could be proved, will not, cannot avail. Every thing by which we are
surrounded informs us that we are in a court of law. Every thing that we
have been three weeks employed in doing reminds us that we are engaged
not in a mere inquiry into the fitness of an officer for the place which
he holds, but in the trial of a criminal case on legal principles. And
this great truth, so important to the liberties and happiness of this
country, is fully established by the decisions of this honorable Court,
in this case, on questions of evidence--decisions by which this Court has
solemnly declared, that it holds itself bound by those principles of law
which govern our tribunals in ordinary cases. These decisions we accepted
as a pledge, and now rely on as an assurance that this cause will be
determined on no newly discovered notions of political expediency, or
State policy, but on the well settled and well known principles of law
and the constitution.
Having taken this view of these preliminary points, I now proceed, Mr.
President, to consider the various charges against our honorable client,
in the order in which they have been stated by the prosecutors. It is not
my design to go over the same ground which has been so recently trodden
by my able colleagues. The task assigned to me, is to range rapidly over
the first six articles; to present some views of the subject, which the
multiplicity of the matter induced my learned colleagues to omit; and
then to discuss at large the law and the facts, under the seventh and
eighth articles, which have not yet been touched.
Let the charge, Mr. President, be carefully examined, and it will be
found to have no object in view but to convince the people of Maryland,
by arguments drawn from reason and experience, of the danger of adopting
a change in their State constitution, which had been submitted to their
consideration, and the object of which was to abolish all their supreme
courts of law; to introduce a system entirely new and untried; and above
all, to destroy the independent tenure of judicial office, secured to
them by their existing constitution; and to leave the judges dependent
on the Executive for their continuance in office, and on the Legislature
for their support. The respondent, who had contributed largely to the
formation and establishment of the State constitution, was greatly
alarmed at these changes. He considered them as of the most destructive
tendency to the liberty and happiness of the State to which he belonged,
and he resolved to take this opportunity of warning his fellow-citizens
against them. This is the whole scope of his address to the grand jury,
to show the importance of an independent judiciary, the dangerous
tendency of changes already made, and the mischiefs which would result
from taking this additional step in the career of innovation. He did,
indeed, advert to the act of Congress for repealing the circuit court
law, and remarked that it had shaken to its foundation the independence
of the Federal judiciary; but the manifest and sole object of this was,
to show that the spirit of innovation had gone forth, and ought to be
carefully watched; that the public respect for great constitutional
principles had begun to be weakened; and that by how much the security
which might have been derived from an independent Federal judiciary
had been diminished, by so much the more vigilantly it behooved us to
guard our State institutions. No other object can be discovered in
the charge, or inferred from its general tenor, or from the language
in which it is expressed; neither is there any evidence which has the
most remote tendency to show that he had any other object in view. And
was not this an object which a citizen of this country might lawfully
pursue? Is it not lawful for an aged patriot of the Revolution to warn
his fellow-citizens of dangers, by which he supposes their liberties and
happiness to be threatened? Or will it be contended that a citizen is
deprived of these rights because he is a judge? That his office takes
from him the liberty of speech which belongs to every citizen, and is
justly considered as one of our most invaluable privileges? I trust
not. And if there could be any doubt on this point, I would remove it
by referring to a recent instance of two judges of the Supreme Court
of Maryland, who, in a late political contest, entered the lists as
champions for the rival candidates, and travelled over a whole county,
making political speeches in opposition to each other. Yet these
gentlemen justly possess the confidence and respect of the public; their
conduct in this instance has never been considered as a violation of
duty; and he who espoused the interest of the successful candidate has
been far from receiving any marks of displeasure from the Government of
this country.
If, therefore, a judge retain this right, notwithstanding his official
character; if it still be lawful for him to express his opinions of
public measures, to oppose by argument such as are still pending, and to
exert himself for obtaining the repeal, by constitutional means, of such
as have been adopted, I ask what law forbids him to exercise these rights
by a charge from the bench? In what part of our laws or constitution
is it written that a judge shall not speak on politics to a grand
jury?--shall not advance, in a charge from the bench, those arguments
against a public measure which it must be admitted he might properly
employ on any other occasion? Such conduct may perhaps be ill-judged,
indiscreet, or ill-timed. I am ready to admit that it is so; for I am one
of those who have always thought that political subjects ought never to
be mentioned in courts of justice. But is it contrary to law? Admitting
it to be indecorous and improper, which I do not admit, is every breach
of decorum and propriety a crime? The rules of decorum and propriety
forbid us to sing a song on the floor of Congress, or to whistle in a
church. These would be acts of very great indecorum, but I know of no law
by which they could be punished as crimes. Will they who contend that it
is contrary to law for a judge to speak of politics to a grand jury, be
pleased to point out the law of the land which forbids it? They cannot do
so. There is no such law. Neither is there any constitutional provision
or principle, or any custom of this country, which condemns this practice.
And will this honorable body, sitting not in a legislative but a judicial
capacity, be called on to make a law, and to make it for a particular
case which has already occurred? What, sir, is the great distinction
between legislative and judicial functions? Is it not that the former
is to make the law for future cases; and that the latter is to declare
it as to cases which have already occurred? Is it not one of the
fundamental principles of our Constitution, and an essential ingredient
of free government, that the legislative and judicial powers shall be
kept distinct and separate? That the power of making the general law
for future cases shall never be blended in the same hands, with that
of declaring and applying it to particular and present cases? Does not
the union of these two powers in the same hands constitute the worst of
despotisms? What, sir, is the peculiar and distinguishing characteristic
of despotism? It consists in this, sir, that a man may be punished for
an act which, when he did it, was not forbidden by law. While, on the
other hand, it is the essence of freedom, that no act can be treated as
a crime, unless there be a precise law forbidding it at the time when it
was done.
It is this line which separates liberty from slavery; and if the
respondent be condemned to punishment for an act, which far from being
forbidden by any law of the land, is sanctioned by the custom of this
country for more than twenty years past, then we have the form of free
government, but the substance of despotism.
Let the gentlemen, before they establish this principle, recollect
that it is a two-edged sword. Let them remember that power must often
change hands in popular governments; and that after every struggle the
victorious party come into power, with resentments to gratify by the
destruction of their vanquished opponents, with a thirst of vengeance
to be slaked in their blood. Let them remember that principles and
precedents, by which actions innocent when they were done, may be
converted into crimes, are the most convenient and effectual instruments
of revenge and destruction with which a victorious party can be
furnished. Let them beware how they give their sanction to principles
which may soon be turned against themselves; how they forge bolts which
may soon be hurled on their own heads. In a popular government, where
power is so fluctuating, where constitutional principles are therefore
so important for the protection of the weaker party against the violence
of the stronger, it above all things behooves the party actually in power
to adhere to the principles of justice and law, lest by departing from
them they furnish at once the provocation and the weapons for their own
destruction.
This charge, therefore, fails like the rest; and what remains of the
accusation? It has dwindled into nothing. It has been scattered by the
rays of truth, like the mists of the morning before the effulgence of
the rising sun. Touched by the spear of investigation, it has lost its
gigantic and terrifying form, and has shrunk into a toad. Every part
of our honorable client’s conduct has been surveyed; all his motives
have been severely scrutinized; all his actions have been brought to
the test of law and the constitution; his words and even his jocular
conversations, have been passed in strict review; and the ingenuity and
industry of the honorable Managers have proved unable to detect one
illegal act, one proof, or one fair presumption of improper motive.
TUESDAY, February 26.
The Court opened at about half past ten o’clock, A.M.; the Managers, the
House of Representatives, and the counsel of the respondent having taken
their seats.
Mr. NICHOLSON, as one of the Managers, addressed the Court in reply to
the counsel of the accused. He said the House of Representatives having
impeached Samuel Chase, one of the associate justices of the Supreme
Court of the United States, of high crimes and misdemeanors; the evidence
on their part having been adduced, and that on behalf of the accused,
and the arguments of his counsel having been fully and patiently heard,
it now became his duty to reply in support of the impeachment. To me,
Mr. President, this duty is an unpleasant one. Upon all occasions and
under all circumstances, the office of a public accuser is the most
painful that can be imposed on us; but it is more peculiarly so when the
object of accusation appears before us covered with age and infirmities.
I think I speak the sentiment of my brother Managers of the House of
Representatives, when I say, that this impeachment never would have been
instituted, that it never would have arrived at its present crisis, if we
had not believed that the best interests of our common country required
that the conduct complained of should not go unpunished. There is no
nation on earth, sir, in which the freedom of man and the consequent
happiness of society are not inseparably interwoven with the full, free
and impartial administration of justice.
“Una salus ambobus erit commune periculum.”
It was to preserve this unity of safety, to avert this common danger,
that we thought ourselves bound by the most solemn obligation to bring
these charges before the highest tribunal of the nation. We may in vain
make laws to secure our property, to protect our liberty, and to guard
our lives, if those to whom we appeal, and to whose decrees we are bound
to submit, shall prove unfaithful in the discharge of their duty. If
our laws are not faithfully administered; if the holy sanctuary of our
courts is to be invaded by party feeling; if justice shall suffer her
pure garment to be stained by the foul venom of political bigotry, we may
indeed boast that we live in a land of freedom, but the boast will be
vain and illusory.
In this point of view, therefore, this cause may justly be called an
important one. I need not however urge its importance to the Court, for
the feelings of every honorable member will speak its importance more
forcibly than any thing that I can utter. But I do trust that those
frequent appeals which you have heard, those frequent instances in which
you have been reminded that posterity will pass between the accused,
his accusers, and his judges, will have no influence on your minds. A
desire to secure the approbation of posterity is an honorable feeling,
pervading every human breast, and is most inseparable from our nature:
but to secure the approbation of posterity, we must take care to pursue
the dictates of our own consciences, and, by doing justice here, trust to
posterity to do us justice too.
Our country, it is true, are now looking on with anxious solicitude for
the event of this cause; but the sentence which they shall pass will
not depend upon the judgment given here. To the world and to posterity
the conviction of the accused, by this Court, will not establish his
guilt; and I thank God, as the case has been put in issue between us,
his acquittal will not prove his innocence. The facts in the cause, sir,
those facts which we have proved by the most undeniable evidence, and
upon which your judgment must be given; those facts will be presented to
the eyes of the world and of posterity, and upon those only will they
decide. If it should ever be the fortune of my humble name to descend to
posterity, by the vote which I gave for instituting this impeachment,
and by my conduct in discharging the great duty now committed to me,
I cheerfully consent to be tried. To this awful tribunal I willingly
submit. If the judge is guilty, posterity will heap on him all that odium
which his guilt deserves; if he is innocent, let that odium be turned
upon his accusers.
Because Sidney and Russell bled upon a scaffold, have their names been
less the objects of veneration with posterity? and because Scroggs and
Jeffries escaped the punishment due to their crimes, have they therefore
been less the objects of universal execration? No, sir; and the honorable
counsel (Mr. Hopkinson) who first addressed you on behalf of the accused,
gave us himself a memorable example of the poor respect which posterity
will feel for the decisions of those who have gone before them. That
honorable gentleman told you that Warren Hastings was impeached for the
murder of princes and the plunder of empires, and yet he was acquitted.
But, is there any who hears me, that believes he was innocent? If we read
the history of that trial; if we look to the facts charged, and listen to
the unexampled eloquence by which they were supported, our only wonder
will be, that he was not condemned. Sir, it has been said that those
plundered millions were the best witnesses to prove his innocence; and
I greatly fear that the day will come when the crying blood of those
murdered princes will be the best witnesses to prove his guilt. The most
splendid action in Edmund Burke’s life was his accusation of Warren
Hastings; the foulest stain upon the national justice of England was his
acquittal.
We have been charged, sir, by one of the honorable counsel (Mr. Harper)
with having endeavored to enlist on our side the sympathies of the
Court. Permit me to ask, what sympathy have we endeavored to excite?
What feelings have we endeavored to engage? To what passion have we
addressed ourselves? None, sir. We came here to demand justice. The
constitution has placed in your hands the power of punishing guilt; we
have proved the guilt of the person accused, and at your hands we demand
his punishment. To your consciences and your understandings we appeal,
and not to your feelings. These have been assailed by our adversaries.
They have exhibited their client to you, covered, as they say, with the
frost of seventy winters, and have endeavored to hide the magnitude of
his crimes, in the length of his years, and the infirmity of his health.
In attempting to excite your compassion, they have wished to drown the
voice of justice, and have addressed you not as judges but as men. I do
trust, however, that if any sympathy is to be excited, it will be neither
for the accused, nor his accusers. Let your feelings be turned toward
the nation! Let your sympathy be awakened for those who are to come
after you, for by the sentence which you pronounce in this case, it must
ultimately be determined whether justice shall hereafter be impartially
administered, or whether the rights of the citizen are to be prostrated
at the feet of overbearing and tyrannical judges. We, who are engaged
in this prosecution, feel that our fathers handed down to us a glorious
birthright, and we appear at this bar to demand that it be transmitted
to our children unimpaired and unpolluted. Do the nation justice, and
you will do justice to us, to yourselves, and to posterity. We were also
told by the honorable counsel for the accused, that when we found the
accusation shrunk from the testimony, and that the case could no longer
be supported, we resorted to the forlorn hope of contending that an
impeachment was not a criminal prosecution, but a mere inquest of office.
For myself I am free to declare, that I heard no such position taken. If
declarations of this kind have been made, in the name of the Managers, I
here disclaim them. We do contend that this is a criminal prosecution,
for offences committed in the discharge of high official duties, and
we now support it, not merely for the purpose of removing an individual
from office, but in order that the punishment inflicted on him may deter
others from pursuing the baneful example which has been set them.
Nor do we mean to take another ground which the counsel for the accused
have thought proper to assign us, for we never entertained the most
distant idea that any citizen might be impeached. It was with no little
surprise that I heard such doctrines ascribed to us, and I was astonished
to hear the Attorney-General of Maryland combating positions which we had
not laid down, and searching for argument to prove that which we should
not have hesitated to admit.
But, sir, there is one principle upon which all the counsel for the
accused have relied, upon which they have all dwelt with great force, and
to the maintenance of which they have directed all their powers, that we
cannot assent to; we mean to contend against it, because we believe it to
be totally untenable, and because it is of the first importance in the
decision of the question now under discussion. We do not contend that,
to sustain an impeachment, it is not necessary to show that the offences
charged are of such a nature as to subject the party to an indictment,
for the learned counsel have said that the person now accused is not
guilty, because the misdemeanors charged against him are not of a nature
for which he might be indicted in a court of law.
To show how entirely groundless this position is, I need only pursue
that course which has been pointed out to us by the respondent himself,
and his counsel. I might refer to English authorities of the highest
respectability, to show that officers of the British Government have
been impeached for offences not indictable under any law whatever. But
I feel no disposition to resort to foreign precedents. In my judgment,
the Constitution of the United States ought to be expounded upon its
own principles, and that foreign aid ought never to be called in. Our
constitution was fashioned after none other in the known world, and if we
understand the language in which it is written, we require no assistance
in giving it a true exposition. As we speak the English language, we
may, indeed, refer to English authorities for definitions, as we should
refer to English dictionaries for the meaning of English words; but upon
this, as upon all occasions, where the principles of our Government are
to be developed, I trust that the Constitution of the United States will
stand upon its own foundation, unsupported by foreign aid, and that the
construction given to it will be, not an English construction, but one
purely and entirely American.
The constitution declares, that “the judges both of the supreme and
inferior courts shall hold their commissions during good behavior.” The
plain and correct inference to be drawn from this language is, that a
judge is to hold his office so long as he demeans himself well in it;
and whenever he shall not demean himself well, he shall be removed. I
therefore contend that a judge would be liable to impeachment under the
constitution, even without the insertion of that clause which declares,
that “all civil officers of the United States shall be removed for the
commission of treason, bribery, and other high crimes and misdemeanors.”
The nature of the tenure by which a judge holds his office is such that,
for any act of misbehavior in office, he is liable to removal. These acts
of misbehavior may be of various kinds, some of which may, indeed, be
punishable under our laws by indictment; but there may be others which
the law-makers may not have pointed out, involving such a flagrant breach
of duty in a judge, either in doing that which he ought not to have done,
or in omitting to do that which he ought to have done, that no man of
common understanding would hesitate to say he ought to be impeached for
it.
The words “good behavior” are borrowed from the English laws, and if I
were inclined to rest this case on English authorities, I could easily
show that, in England, these words have been construed to mean much
more than we contend for. The expression _durante se bene gesserit_,
I believe, first occurs in a statute of Henry VIII. providing for the
appointment of a _custos rotulorum_, and clerk of the peace for the
several counties in England. The statute recites, that ignorant and
unlearned persons had, by unfair means, procured themselves to be
appointed to these offices, to the great injury of the community, and
provides that the _custos_ shall hold his office until removed, and the
clerk of the peace shall hold his office _durante se bene gesserit_.
The reason for making the tenure to be during good behavior, was, that
the office had been held by incapable persons, who were too ignorant
to discharge the duties; and it was certainly the intention of the
Legislature that such persons should be removed whenever their incapacity
was discovered. Under this statute, therefore, I think it clear that the
officer holding his office during good behavior, might be removed for
any improper exercise of his powers, whether arising from ignorance,
corruption, passion, or any other cause. To this extent, however, we do
not wish to go. We do not charge the judge with incapacity. His learning
and his ability are acknowledged on all hands; but we charge him with
gross impropriety of conduct in the discharge of his official duties, and
as he cannot pretend ignorance, we insist that his malconduct arose from
a worse cause.
It has been alleged by the counsel for the accused, that my honorable
colleagues have argued this case upon the articles and not upon the
evidence; and this allegation contains an admission, that if the articles
are proved, the guilt of the party is established. It shall be my
endeavor to show that there is no material variance between the charges
as laid in the articles, and the evidence brought to support them; but
that they are amply and fully proved by the very best testimony which
could be adduced.
One of the learned counsel in commenting upon the first article, declared
that he discovered but a single truth in it, which was, that the judge
had formed and reduced to writing an opinion upon the law; and that
gentleman, as well as the Attorney-General of Maryland, labored with
great zeal and with much display of talent, to convince the Senate that
there could be nothing wrong in this. Unfortunately for these learned
gentlemen, even that truth is not to be found in it, for by recurring to
the article it will be found that the judge is not charged for having
formed an opinion, or for having reduced that opinion to writing, but for
“having delivered an opinion in writing on the question of law, on the
construction of which the defence of the accused materially depended,
tending to prejudice the minds of the jury against the prisoner before
counsel had been heard in his defence.”
In this we find no charge against him for having formed an opinion, or
for having reduced it to writing, and certainly the learned counsel might
have spared themselves the trouble of proving what I am sure every member
of the Court was fully convinced of before, that there was no impropriety
in a judge’s forming an opinion on any subject whatever, whether legal
or philosophical. It is not, however, usual for skilful advocates to
attempt to draw the attention from the material points in dispute, for
the purpose of fixing it on others of little or no importance. Such has
been the course pursued by our adversaries. But, Mr. President, the
real charge is, that Samuel Chase did, upon the trial of John Fries for
treason, endeavor to prejudice the minds of the jury against him, by
delivering an opinion to them upon the law before his counsel were heard;
and this too in a case of life and death, where the jury had an ample,
uncontrollable right, to decide as well the law as the fact. It is the
right and duty of judges to inform their minds upon all questions of law
whatsoever, but it is an unwarrantable proceeding, it is an unauthorized
assumption of power in them, to deliver that opinion to the jury in a
criminal cause before the jury is sworn, and before the counsel of the
prisoner have been heard in his defence.
Much has been said with a view to convince the Court that the opinion
thus delivered was a correct one, and it has therefore been argued that
his conduct was perfectly justifiable. For my own part, I consider it
totally immaterial in the present case whether the doctrine of treason,
as laid down by the judge, was correct or not; for even if it were
correct, the time and manner of delivering it, and the persons to whom
it was delivered, form the substance of the charge against him. It is a
misdemeanor, a high misdemeanor in a judge, wantonly to give an opinion
upon any case which is to come before him, previously to the swearing
of the jury, and the offence is made much greater by the opinion being
publicly declared in the presence of the jury, who ought to come to the
trial of every cause with minds wholly free from prepossession against
either party.
Although the judge has said in his answer, that no gentleman of
established reputation for legal knowledge would deliberately give a
contrary opinion, yet I have not the slightest apprehension that any
little reputation which I may possess, can in any manner be affected by
my expressing, as I now do, my entire conviction that the doctrine of
treason, as laid down in Fries’s case, is wholly repugnant to the spirit
and meaning of the constitution. It is not my intention at this time
to enter into an argument to prove this, for I have before said that
I consider it quite immaterial in the present discussion; but I will
offer some few observations, to demonstrate to the Senate that there
was nothing very unreasonable in the wish expressed by Mr. Lewis and
Mr. Dallas, to show that the constitution was susceptible of another
construction.
The constitution declares that “treason against the United States
shall consist only in levying war against them, or in adhering to
their enemies, giving them aid and comfort.” John Fries was indicted
for _levying war_ against the United States, and the facts I believe
were, that he, with some others, did, in a forcible manner, rescue some
prisoners from the marshal of Pennsylvania. This was called a resistance
to a law of the United States, and, by construction, was determined at
the former trial to be the treason of levying war. It was in opposition
to this construction of the constitution that Mr. Lewis and Mr. Dallas
wished to be heard. It was certainly not a very extravagant wish on their
part, for it ought to be recollected that we are a young nation, and
it is deeply interesting to us all that the Constitution of the United
States should not receive a construction unwarranted by its letter.
After the decisions had taken place in the courts upon the Western
insurrection, (I mean in the cases of Vigol and Mitchell,) Congress had
passed an act declaring that to resist a law of the United States should
be deemed a high misdemeanor, punishable by fine and imprisonment; and
they had before provided, by the act of 1789, that to rescue prisoners
from the custody of the marshal should also be punishable by fine and
imprisonment. Mr. Lewis and Mr. Dallas were desirous of showing that
Fries’s case came within the provisions of these laws, and that his
offence was not of such a nature as to forfeit his life. They also wished
to have an opportunity of proving that the terms _levying war_ ought
not to receive the same construction here as in England. To convince
the Senate that they were not singular in their ideas, and that the
construction given by the Court has not been unanimously assented to, I
shall take the liberty of referring to an author of merited reputation,
to whom I believe our adversaries will not refuse their respect.
Judge Tucker of Virginia, in his valuable edition of Blackstone’s
Commentaries, in the appendix to the fourth volume, under the title of
_treason_, after reciting that part of the constitution relating to the
subject, observes:
[Here the opinions of Judge Tucker were read.]
Such we find are the opinions of Judge Tucker, an able and upright
lawyer, who thinks that the constitution ought to be construed agreeably
to the plain import of its language, and ought not to be involved in
technical abstruseness. In that series of publications entitled the
Federalist, written at the commencement of the present Government, by
some of the ablest men in this nation, for the purpose of defending the
constitution, it is matter of boast, that treason was fully defined,
and not left to wild and arbitrary construction. But what avails the
definition, if the constructive treasons of England are to be drawn in as
precedents for us?
I before stated that I did not mean to enter into an argument against the
correctness of the Court’s opinion; nor have I done so, but have offered
these remarks to show that it was not unreasonable in Mr. Lewis and Mr.
Dallas to wish that another construction of the constitution might be
received. The counsel for Judge Chase seem to think it monstrous that
they should have wished to argue the point after the law had been settled
by three former decisions, which had taken place in the course of four
years. Let it be remembered that Sir Matthew Hale doubted, after the
lapse of one hundred and fifty years from the first of these constructive
treasons, and after, for aught I know, one hundred and fifty cases had
been decided. Mr. President, far from thinking their conduct on that
occasion extraordinary, I, as a free man of America, most cheerfully
accord them my thanks for the stand they made; and I do hope and trust,
that if ever a similar case should occur, in which the same doctrine of
constructive treasons shall be urged to a jury, men like Mr. Lewis and
Mr. Dallas will be found, men of exalted talents and extensive learning,
who will be bold enough to assert the rights of the citizen, and save the
constitution of their country from destruction.
Another justification of a peculiar nature is set up in defence of
Judge Chase, by a statement made in Keelyng’s Reports. It is there
said that “after the _happy_ restoration of King Charles the Second,
Sir Orlando Bridgman, chief justice of the King’s Bench, and some six
or eight others, judges, prosecutors, and King’s solicitors, assembled
for the purpose of determining in what manner the _regicides_ should be
tried, and they settled many points which it was supposed would occur
upon the trials.” This, sir, is an unfortunate period to refer to for
justification of the conduct of judges in our day. Never was there a
moment of such fawning servility; never was there a period of such
unbounded licentiousness. The hope of reward or the fear of punishment
brought almost every man crouching at the footstool of the throne, and
all united in singing hosannas to the King, and crying aloud for the
crucifixion of the miserable regicides. This conspiracy (which has been
quoted) against the wretched victims whose sacrifice was resolved on, was
headed by that most servile of all servile tools, Sir Orlando Bridgman.
His character and those of his brother judges who conspired with him,
may be recollected from the charge which he gave to the grand jury on
that occasion. It will be found in the fourth volume of State Trials,
and it will there be seen how flamingly he talked of the _divine right
of Kings_, whom he called _God’s vicegerents_ on earth; their persons he
said were too _sacred_ for their conduct to be inquired into: _they held
their power from God, and were accountable to him alone: it was treason
in their subjects to inquire into the propriety of what they did_; with
much more of the same cast. These are the times, these the men, and this
is the conduct now introduced for the justification of Judge Chase. If
they will afford him a justification he is welcome to it for me. They
were woful times indeed; one would have thought the Parliament which
the King found in session upon his return, was submissive enough; but
he was not satisfied, and finding the whole nation ready to bow at his
nod, he ordered a new one elected, and they proved so compliant to all
his wishes, that he continued them for eighteen years. This sufficiently
proves the servile spirit of those whom the King thought proper to
employ on this noted occasion, and it is not much to Mr. Keelyng’s honor
that he was one of them. The points which they did settle were of an
extraordinary nature, and one of them was read a few days since by one of
the counsel (Mr. Key) to show that Basset was a good juror in Callender’s
trial.
If, however, this famous precedent had been made in the best of times, it
does not apply to the present case. For these judges, bad as they were,
yet had modesty enough to keep their opinions to themselves, till after
the trials had commenced, and did not deliver them until the occasions
arose which called for them. Judge Chase, we have fully proved, delivered
his opinion beforehand, publicly, and in the hearing of the jury, so that
the authority of Mr. Justice Keelyng and Sir Orlando Bridgman does not
justify him. He outstripped even them.
Having thus, as I conceive, fully established the first specification
contained in this article, and having answered the only colorable
excuses advanced in favor of the judge, I shall proceed to the second
specification. This is a charge against him for “restricting Fries’s
counsel from recurring to such English authorities as they believed
apposite, and from citing certain statutes of the United States, which
they deemed illustrative of the positions upon which they intended to
rest the defence of their client.”
I must therefore be permitted to insist that Fries’s counsel were
prohibited from recurring to English authorities, and from citing
certain statutes of the United States. It is fully proved by Mr. Lewis,
and corroborated by Mr. Dallas. The latter was not in Court when the
conversation took place; but coming in immediately after, he was informed
of it by Mr. Lewis, and then stated to the Court what Mr. Lewis had told
him. The Court did not deny it, and certainly it is to be presumed, if
Mr. Lewis had made an erroneous statement of facts to Mr. Dallas, and
they had been repeated by Mr. Dallas, the Court would have contradicted
them. This was not done, and both these gentlemen now swear that they
were prohibited.
An attempt, however, is made to shelter the judge from this part of the
accusation, by saying that he declared counsel would be heard although
this opinion was given. Sir, this is another evasion. The opinion itself
carries with it internal, uncontrovertible evidence of the determination
of the Court that the counsel should not address the jury. What is the
principal ground of the defence? what is the leading reason urged for
giving this extraordinary opinion before the jury was sworn? It was,
as the judge says, and as his counsel have argued, to save time. They
state that there were more than one hundred civil causes then depending,
that the delay of business in Pennsylvania had been long a subject of
complaint, and the judge was anxious to make Fries’s trial a short one,
in order that they might have time to proceed with the other business.
Now suffer me to inquire how time was to be saved; how the trial of Fries
was to be shortened, if his counsel were to be allowed to address the
jury on the law which the Court had already decided? Was not the opinion
of the Court given for the express purpose of preventing them from
addressing the jury; or, if not for this, let me ask for what purpose it
was given? Was it to prejudice the minds of the jury; to close their ears
and their understandings against any arguments which might be offered
them? Gentlemen say no. Was it to save time? This was impossible, because
the time was still to be occupied by the counsel being permitted to
address the jury. Why then, let me ask, was the opinion given? The answer
is ready. It was intended to produce both these effects. The minds of the
jury were to be preoccupied by the imposing authority of the Court, and
in this manner it was expected to deter the counsel from addressing them
on the law. Nothing, therefore, can be clearer, than that the counsel
were prevented from addressing the jury, and that the judge “_endeavored_
(in the language of the article) to wrest from the jury their right
to hear argument, and determine upon the question of law.” But it is
said that the right of the jury to decide the law does not give them a
dispensing power over the law, and that therefore they are bound by the
opinion of the Court. Nor does the right of the _Court_ to decide the law
give _them_ a dispensing power over the law. The jury have a right to
decide the law, and are not bound by the opinion of the Court. In order
to enable them to decide correctly they have a right to hear argument,
and any attempt to prevent this, is an attempt to wrest from them their
right to decide the law, and is a high misdemeanor.
We are told, however, that if any thing wrong was done on the first
day, ample atonement was made on the second. It is true that the judge
exhibited some appearance of a wish that the counsel would proceed on
the second day, but Mr. Lewis well remarked, that although the papers
were withdrawn, the impression which had been made on the minds of the
jurors could not be removed. What sort of an atonement, too, was this? It
carried insult with it; and the language in which it was made had a still
greater tendency to strengthen the impression made the day before. The
counsel were publicly informed they might proceed as they pleased, _but
it must be at the hazard of their characters_, under the direction of the
Court. Is there a man of reputation on earth, possessed of the smallest
spark of feeling, that would consent to disgrace himself by addressing
a jury under such circumstances? This alone, if nothing else had taken
place, was sufficient to drive them from the defence of their client; and
if they thought that their abandoning him might eventually save his life,
they were fully justified in doing so.
The learned advocates for the judge have talked highly of the
independence of the judiciary, and have asked what inducements any judge
could have to act as we have charged Judge Chase with acting. Are there
then no inducements for a judge to swerve from his duty? Has he no
feelings to gratify, and is it impossible for him to become a partisan?
Does his character as a judge divest him of his ambition as a man? Is
he so incorruptible that temptation cannot assail him? Look through the
annals of other nations--read the history of England for the last forty
years. Judicial independence has been for a long time as well secured
there as here; and yet how many instances shall we find in that country
of prosecutions in which the feelings of the Ministry had been engaged,
and in which their influence over the judges has been too flagrant to be
mistaken? In Ireland, miserable Ireland, a still more gloomy prospect
presents itself. They, too, have boasted an independent judiciary; but an
overruling influence has crumbled it into ruins. The demon of destruction
has entered their courts of justice, and spread desolation over the
land. Execution has followed execution, until the oppressed, degraded,
and insulted nation has been made to tremble through every nerve, and to
bleed at every pore. Let us then be warned by the fate of Ireland. In
State prosecutions her judges look to the Castle; although they cannot be
put down, they may be elevated. Some of our judges have been elevated to
places of high political importance; splendid embassies have been given
to them. I will not say that they were given or accepted with improper
views; but they have been given, and surely they hold out inducement
enough for a judge to bend to the ruling party. It is our duty to prevent
party spirit from entering into our courts of justice. Let us nip the
evil in the bud, or it may grow to an enormous tree, bearing destruction
upon every branch. You have now an opportunity of doing it, and I trust
you will not suffer it to escape you. I therefore hope that you will not
only remove Judge Chase from the high office which he now fills, but that
by your judgment you will for ever hereafter disqualify him from holding
any office of profit or trust under the Government of the United States.
Mr. RODNEY.--Mr. President, and Gentlemen of the Senate: The present
trial exhibits a spectacle truly solemn and impressive. A man who holds
one of the highest judicial offices under the Government, who, from
the period of the Revolution, has filled many of the most important
public situations, and whose hairs have been bleached in the service
of his country, is charged before this dignified tribunal, by the
Representatives of the American people, with the commission of acts in
violation of his duty as a judge, and of the laws and constitution of the
land.
On one hand, the character of an aged and respectable individual, which
may be dearer to him than the small remnant of his life, is involved in
your decision; on the other, the most precious rights of free citizens,
and the dearest interests of society.
The mind which could contemplate, unmoved, such a scene, cannot feel
for the welfare of the people, or the honor of the nation, and must be
equally insensible to the finer sympathies of life, and the practice of
its charities and affections.
The public anxiety manifested by this deeply interesting trial must be
evident to all--a trial of the first importance, because of the first
impression--a trial not confined to a single act in the conduct of the
accused, but embracing a variety of transactions at different periods of
his life--a trial which departs from the ordinary mode of decision, whose
novelty and magnitude have excited so much interest and attention that
it seems to have superseded for the moment, not only every other grave
object or pursuit, but every other fashionable amusement or dissipation.
The task of prosecuting is always very unpleasant, and to me extremely
painful; but my rule has ever been not to suffer private considerations
or personal feelings to stand in the way of a firm and independent
discharge of public duty.
To this exalted tribunal I look with confidence for a display of that
dignified impartiality, which will do credit to their elevated situation,
and reflect honor on their country. You will raise yourselves, I am
convinced, above the common level of human prejudices, personal or
political, and will suffer no considerations but those which are
perfectly correct to be blended with your inquiries or mingled with your
decisions.
Party, it is true, is a spirit of so subtle a nature as to diffuse itself
almost imperceptibly over the human mind; it frequently pervades the
system without being felt, and sometimes warps the judgment when least
suspected. Against the influence of this spirit I need scarcely caution
the judges whom I have the honor to address. It cannot approach within
the pale of this Court, or enter their hallowed walls.
I have marked, Mr. President, in the questions which you have so
correctly put to the witnesses in the course of their examination, that
singleness of eye, which looks to the discovery of truth alone, without
reference to the party whose case it may affect; whilst your conduct
in maintaining that order and decorum suitable to the solemnity of the
occasion has exhibited an example worthy of imitation.
I have observed, with heartfelt pleasure and honest pride, the unwearied
and impartial attention paid by the members of this Court during the
progress of this momentous cause. To my mind it presages a decision
worthy of themselves, and serviceable to their country, and is a sure
pledge that their determination will be honest, upright, and independent.
If, after a fair and full inquiry into the facts, illustrated by the
arguments for and against the accused, and a careful examination of the
law, commented on by those whose duty it is to support the impeachment,
and those who are opposed to it, the Senate shall be of opinion that
the charges have not been substantiated, and pronounce a verdict of
acquittal, believe me, sir, I, as a citizen faithful, obedient, and
affectionate to the laws of my country, shall most cheerfully acquiesce
in the decision. But I do confidently trust that it will not take place,
on the principles or the precedent established in the case of Warren
Hastings, the Governor of Bengal, that plunderer of India, that destroyer
of the people of Asia, that devastator of the East, whose crimes were
without number, and whose enormities exceeded calculation. What fields
have been dyed, what streams have been tinged with the innocent blood
of victims sacrificed on the altar of his avarice or his ambition! An
obligation however solemn, a treaty however sacred, interposed but
a weak and feeble barrier to the views of his personal or political
aggrandizement. Even a zenana, the sacred retreat of women, holy and
consecrated to the fairest work of the creation, by the religious customs
of that country, has been violated whenever the silver and the gold, the
jewels and the diamonds, were sufficient objects to attract his attention
or gratify his rapacity.
The House of Representatives, so far from deserving blame, in my humble
opinion, merit commendation for the reluctance with which they proceeded
to accusation, and for the care, caution, and dignity which have marked
their steps. I have frequently heard an unbecoming zeal reprobated in a
prosecutor; but never before did I hear from the lips of a counsel for an
offender, a complaint of delay and remissness in charging his client with
guilt. What a striking contrast does their conduct furnish, compared with
that of the defendant! They betrayed no thirst for prosecution, but an
unwillingness to accuse; no eager appetite for conviction, but an anxious
desire that impartial justice should take place between the public and
an individual, whom irresistible evidence had compelled them to present
before the highest judicial authority of the nation. Not, it is true,
for the murder of despotic princes whose will was the law, and whose
laws perhaps were as sanguinary as those of Draco; nor for the plunder
of empires, swayed by an iron sceptre as oppressive as the dominion of
Hastings. Far other crimes are laid to his charge. The defendant, a
citizen of this free land, sworn to support our mild constitution and
our equal laws, and bound by his oath of office to administer justice
impartially, having a perfect knowledge of his duty, (for of ignorance
the whole world will acquit him,) stands charged with plundering, in the
holy habit of a judge, a jury of his country of their most sacred rights,
and injured and insulted freemen of their constitutional privileges.
He was indeed providentially prevented from imbruing his hands in the
blood of poor Fries, but he stands accused of shedding, with unfeeling
severity, the life-blood of the constitution itself.
Such are the crimes for which he is arraigned at your bar, and which
one of the gentlemen has been pleased to term petty offences. In the
dark catalogue of criminal enormities, perhaps few are to be found of a
deeper dye. If I were an advocate of the doctrines of constructive and
cumulative treasons, of which the learned judge appears to have been a
great admirer and a zealous supporter, I would say that he himself was
guilty of judicial treason against the constitution of the country and
majesty of the people.
The independence of the Judiciary, the political tocsin of the day,
and the _alarm bell of the night_, has been rung through every change
in our ears. They have played upon this chord until its vibrations
produce no effect. The sound is rather calculated to stun us into an
insensibility against real attacks, for the poor hobby has been literally
rode to death. To the rational independence of the Judiciary, I am,
and ever have been a firm and uniform friend. But I am no advocate for
the inviolability of judges more than of kings. In this country I am
afraid the doctrine has been carried to such an extravagant length, that
the Judiciary may justly be considered like a spoiled child. They are
here placed almost beyond the reach of the people, though not beyond
the immediate power and influence of the Executive. I wish not to see
them the slaves of any administration, but the faithful and impartial
executors of justice. My desire is that the laws, like the providence of
the Deity, should shed their protecting influence equally over all.
It will be allowed that the hopes of an individual are as powerful
inducements to action as his fears. Whether the Executive can depress
or exalt him, his influence is equally great. Whether he can punish his
errors or reward his faults, his dominion is the same. We all know that
an associate judge may sigh for promotion, and may be created a Chief
Justice, whilst experience teaches us, that more than one Chief Justice
has been appointed a Minister Plenipotentiary. These facts are staring us
in the face, when we talk of judges being independent of the Government.
What has been the natural effect of such conduct? Have the judges stood
aloof during the political tempests which have agitated the country--or
have they united in the _Io triumphe_ which the votaries and idolaters of
power have sung to those who were seated in the car of Government? Have
they made no offerings at the shrine of party; have they not preached
political sermons from the bench, in which they have joined chorus with
the anonymous scribblers of the day and the infuriate instruments of
faction? Let a recurrence to past events decide.
I wish to be understood as speaking on these topics in the abstract, and
not with a view of imputing improper motives to those concerned in the
arrangements which have taken place.
The people of the United States, on the other hand, have no offices of
profit and emolument to bestow. They have no post immediately in their
power to give, except a station in the House of Representatives, which
a judge would not accept from their hands. But, let me ask, was there
no vacancy in the gift of the Executive, to which the defendant could
aspire, and to which his conduct might furnish him with a passport or a
letter of introduction?
Some observations have been made on the independence of the judges in
England. In that country they are removable by an address of both Houses
of Parliament. By what a slight tenure, by what a slender thread, are
their offices held! The voice, nay, the whisper, or the breath of the
Minister for the time being, may remove them, and yet they have generally
manifested a spirit of real independence, even in the season of alarm
and terror, of which I fear our judges at a similar period cannot boast.
But in that country, a seat on the bench is considered as a place of
rest, and they look not beyond it. There the judges are not made Envoys
Extraordinary or Ministers Plenipotentiary.
We ought not to be imposed upon by names in this country. Give any human
being judicial power for life, and annex to the exercise of it the kingly
maxim “that he can do no wrong,”--you may call him a judge or justice,
no matter what is the appellation--and you transform him into a despot,
regardless of all law but his own sovereign will and pleasure.
Suffer me at this place to notice the remarks of the learned counsel who
spoke yesterday, (Mr. Harper,) with so much sensibility and feeling for
his client, on the change of parties in popular governments, and the
proscriptions, persecutions, and punishments, too frequently inflicted
by those who are triumphant, on the fallen victims of their authority;
when acts, innocent in themselves, because against no known law, have
been converted into crimes to gratify the vindictive passions of the
victorious against those whom the fortune of political war has placed
within their power. No man can deprecate more sincerely than I do, such a
state of things. To the situation of affairs in this country, I presume
these remarks cannot have the most distant application. If they were
made with reference to the present Administration, to the Executive or
Legislative Departments of the Government, the allusion may, perhaps,
have the light support of visionary imagination, but has no substantial
foundation in reality. It may be fancy, but is not fact.
The illustrious Chief Magistrate of the Union[22] has furnished a
precedent, by his liberal and enlightened conduct, of which the
lamentable annals of mankind afford no example. Under his wise and
his mild guidance, what auspicious beams of public sunshine have been
diffused over the whole face of the country! until, to the discontented
few, the language of the Latin poet might justly be applied--
“O fortunati nimium sua si bona norint.”
This enlightened policy has been adopted in conjunction with the luminous
constellation of distinguished worthies, by whom he is surrounded; whose
exalted character and talents add to the usefulness, the dignity, and
splendor of his measures, and increase to an extent almost incalculable
the general sum of the happiness of this great and independent nation.
Turning our eyes to those who have exercised the high and responsible
functions of legislation, we find their acts equally deserving
commendation. Their proceedings are calculated to excite at once the
envy and the admiration of their opposers and the world. They breathe
not the fell spirit of resentment and persecution. To their honor be
it spoken, that, instead of enlarging the circle of offence, they have
reduced the scale of criminality. They have abolished an odious, and,
I believe, an unconstitutional sedition law, which had been executed
with a rigor and severity perfectly congenial with the passionate policy
which gave it birth. The decrees under it, if not written in the blood
of the sufferers, were written in their tears. A more dreadful engine of
persecution and oppression cannot well be conceived. With this instrument
in their hands, they could have smote their enemies and shielded
themselves. It would have been a sword and a buckler, but they disdained
the idea.
Actuated by the best motives, with the honest view of purifying the
fountain of justice, and restoring the characters of the American bench,
they are now engaged in the unpleasant, but indispensable task of
bringing to exemplary punishment a judge who has offended against the
letter and the spirit of the constitution, and the well-known statutes
of Congress; who has violated the bounden duties of his office, and
that high legislative act, which, to the sanction of a law, added the
solemnity and obligation of an oath.
In this important undertaking they are contending not for themselves,
but for posterity; not for those in power, but those whom power has
forsaken. Against all the wild theories of new-fangled opinions and the
monstrous iniquity of exploded doctrines, they wish to teach a lesson
of instruction to future judges that, when intoxicated by the spirit
of party, they may recollect the scale of power may one day turn, and
preserve the scales of justice equal.
It appears that Fries had been tried in the year 1799, before Judges
Iredell and Peters, and convicted of the crime of high treason. His
counsel afterwards moved for a new trial, on the ground that one of the
jury had been prejudiced against him--that he had not in fact been an
impartial juror in the case. The Court, consisting of the same judges,
upon argument, ordered a new trial to be had. A new trial, according to
the best authorities, is “a rehearing of the cause before another jury,
but with as little prejudice to either party as if it had never been
heard before.” In this light Judge Chase should have considered it. He
ought to have gone to Pennsylvania with a mind totally unprejudiced, and
viewed every circumstance of the case with the utmost impartiality. The
very circumstance which produced the second trial ought to have put him
sufficiently on his guard. When a new trial has been directed, to use the
language of the respondent in his answer, “solely on the ground that one
of the jury” (a single man out of twelve) “after he was summoned, but
before he was sworn on the trial, had made some declarations unfavorable
to the prisoner,” how ought an impartial judge to have felt and to have
acted? Mr. Chase, let it be recollected, presided in a court composed of
but two members. With this lesson before his eyes, we find the respondent
forming an opinion in his closet on the law of treason, applicable to the
case of poor Fries, and not satisfied with making up his own mind on this
subject, he took care to bind the judgment of his associate, by obtaining
his approbation of that opinion, which he reduced to writing for the
purpose. This irregular and reprehensible measure was adopted before the
hour of trial arrived, when the man whose life was at stake was to be
heard on a subject that involved his existence. This bold step in the
path to conviction, has been defended on plausible grounds, and by subtle
refinements.
The respondent in his answer and the learned counsel in their defence,
have endeavored to prove that this conduct was not only right, but
perfectly proper and correct. Among the various pretexts eagerly laid
hold of to justify this novel procedure, they urge as a reason for
prejudging and despatching a capital case, the multiplicity of civil
business pending in the same court! I will forbear to inquire into
the facts on this point, though I believe there is not a spark of
testimony to prove the allegation to its full extent, because, if the
docket had been loaded with civil suits, it would form no excuse for
hurrying through a criminal trial, on the issue of which the life of a
fellow-citizen depended. That cause must be bad indeed that requires to
be propped by such miserable expedients. When I first read this passage
in the answer, it struck me with astonishment, and excited a burst
of indignation which it is my duty to repress. “A multitude of civil
business is depending, and therefore I must make up my mind conclusively
on the law in a capital case, before the proper season arrives, without
hearing a single word from the prisoner or his counsel in defence!” The
learned judge certainly did not reflect on the effect of such an excuse,
which instead of palliating his conduct, aggravates it. That he was in a
great hurry, every part of his conduct proves. From the opinion, a copy
of which is annexed to his answer, it would appear that he did not intend
to make it public, at least until after the jury had been sworn and Fries
was on his trial. In that we find these expressions: “The Court heard the
indictment read on the arraignment of the prisoner some days past, _and
just now on his trial_, and they attended to the overt acts stated in the
indictment.”
This honorable Court will recollect that the whole current of the
testimony proves, and the defendant in his answer admits, that he
delivered the papers containing this _ex parte_ opinion before Fries’s
trial commenced. Such was his eagerness to despatch the case, with a
view, he says, of reaching expeditiously the civil list. As if gifted
with the spirit of intuition and with an infallible judgment, he seems
not to have proceeded on the principle of _castigatque auditque_, but to
have improved even upon that model, considering it not necessary for him
to hear arguments at any stage of a cause, for the purpose of forming a
correct opinion. His counsel ask us whether it be a fault in a judge to
have a profound knowledge of the law, which will enable him to decide
promptly any question that may occur; and the respondent said, on Fries’s
trial, that “he had an opinion in point of law as to every case which
could be brought before the Court, or else he was not fit to sit there.”
Yet, when Callender’s trial was progressing, we find this same judge,
upon a common point of practice relative to a challenge to the jury,
calling out for Coke on Littleton to be brought into court before he
could make up his mind on the subject.
The aid of precedent has been called in to justify this wide departure
from principle, and it is contended that the opinion was correct in
point of law. My honorable friend (Mr. Randolph) has detected and
exposed the fallacy of this species of justification. I will remark that
a great and respectable character (Lord Mansfield) has observed, that
he is a most unrighteous and wicked judge who decides without hearing
both sides--even when he decides correctly--because his judgment is the
effect of chance or accident, and not the result of a fair, full, and
impartial investigation. Precedents, let me observe, do not make the
law, they are merely evidence of it; nor is the law to be absolutely
decided by precedents, _judicandum est legibus, non exemplis_. “If a
judge conceives that a judgment given by a former court is erroneous,
he ought not in conscience to give the like judgment, he being sworn
to judge according to law,” says Lord Chief Justice Vaughan. But Judge
Chase declares that, had he differed in opinion from former precedents,
even in a capital case, he should have held himself bound by them. But
here let me ask, what are those precedents to which he subscribes? It is
not my intention to go at full length into the discussion of them, or
comment at large on the law of treason. My object is, on this interesting
occasion, to enter a solemn protest against doctrines which would entail
on us all the constructive treasons of another country, and to assign in
a few words the reasons of my opinion. I am not to be deterred from my
duty by the assertion that no counsel of eminence would controvert the
principles laid down by the respondent in his _ex parte_ opinion, more
especially when characters of such high standing at the bar as Mr. Lewis
and Mr. Dallas, have honorably and conscientiously opposed such monstrous
doctrines. The Western insurrection in Pennsylvania was materially
different from the momentary disturbances in the counties of Bucks and
Northampton. The precedents which arose from one could not be applicable
to the other, and the cases of Mitchell and Vigol, which have been cited,
are readily distinguished from that of Fries.
In the first, the combination was formed and organized to seize _all_
records and papers, and to destroy _all_ offices, to expel _all_ officers
in the whole survey. The insurgents traversed the country armed, seized
papers, attacked offices, and drove officers out of the country.
They seized and imprisoned the marshal, who escaped and returned to
Philadelphia by a circuitous route.
They assembled at Cooche’s fort, consulted on the attack upon Colonel
Neville’s house, marched thither in military array, summoned him to
surrender by a flag, set fire to his house, and destroyed his records.
They assembled at Braddock’s field; deliberated on taking the garrison
at Pittsburg; marched thither with that avowed object; but finding the
garrison prepared for defence they filed off.
They assembled after the proclamation, and after the militia were
ordered to march. They avowed an intention to resist. They compelled the
Government to negotiate. The leaders, Bradford and Marshal, fled on the
approach of the army, and the insurgents generally accepted the terms of
amnesty, as in a case of treason. The army was, however, maintained for
some time in the country.
In the last, the people were illiterate, ignorant of the laws and
language. They did not conspire to act themselves, but to prevent
_particular_ inferior officers from acting, by making the assessments in
_particular_ townships.
They acted like a mob, in obstructing the progress of the officers by
threats, hooting, &c., and once they took an officer’s tax list or
papers, but immediately returned them.
They assembled expressly to release or rescue a _particular_ set of
prisoners whom they called their neighbors.
They rescued the prisoners, and withdrew without injuring or attempting
to injure the marshal, or the tax officers who were at Bethlehem.
They never suggested the idea of resisting the army. They dispersed as
soon as the proclamation was issued, and they never met afterwards.
The distinctions are striking and obvious.
In the insurrection of 1794, the object was general; in the riot of 1799,
it was particular.
In 1794, the insurgents _acted_ as assailants; the rioters of 1799 stood
on the defensive, and only obstructed the officers in attempting to act.
In 1794, the design of attacking a fort and resisting the army was
deliberately formed, and overt acts committed to carry it into effect;
in 1799, the idea of attacking or resisting the military power of the
Government never was suggested.
In 1794, the sedition act had not provided for combinations to impede the
execution of a particular law. In 1799 that act was in existence.
In 1794, the outrage extended to the seizure of the marshal to prevent
his executing any process. In 1799, it was confined to the release of a
particular set of friends and neighbors.
The precedents, therefore, of Mitchell and Vigol, which have been so
much relied upon, did not, I humbly submit, apply to the case of poor
Fries. But the defendant has dwelt much on the opinion expressed by
Judge Iredell, in his charge to the petit jury on the former trial of
Fries, notwithstanding the verdict was set aside, which was given on that
occasion, and Judge Chase should have proceeded on the second trial, as
little prejudiced by any opinions on the former, as if such trial had
never taken place. It appears from the testimony of Mr. Dallas, that so
confident was he of the broad difference between the cases of 1794 and
1799, that in the first trial he did not advert to the former, little
suspecting that they would be considered as precedents for the latter.
When he found, by the charge of Judge Iredell, that he did unexpectedly
rely upon them, his intention was, in the second trial, to direct his
arguments to the manifest distinctions between them. In this, however, he
was disappointed by the arbitrary conduct of the defendant. Under these
circumstances, can this case be considered binding and obligatory; or, is
a single precedent to make the law, and absolutely prevent counsel from
controverting it?
The case of Fries was succeeded by that of Callender. There is seldom
one act of crying injustice without being followed by another. It is the
misfortune, if not the fault, of the respondent, that his conduct compels
us to unfold more than one solitary case, in which he grossly violated
his duty and the laws of the land.
Callender had written a book, which I never saw until since the
commencement of this trial--a wretched performance, which ought never
to have excited in the breasts of the honest supporters of the late
Administration any passion but contempt. They should have applied to it
the memorable declaration of one who once figured in political life, “a
wise and virtuous Administration is not to be battered down by mere paper
shot.” The respondent, it appears, was furnished by one of his present
counsel, (Mr. Martin,) when in the act of setting off for the district
of Virginia, with a copy of this formidable work, which threatened
destruction, in his opinion, to the Federal fabric. The book was ready
scored to his hands, so that, with a single glance, he might discover
the fatal passages. With this volume for a “_vade mecum_, or travelling
companion,” he proceeded to Richmond to hold a circuit court. Soon after
his arrival a presentment was made and an indictment found against
Callender. The miserable object of persecution was hunted up and down
the country. At length he was discovered by the marshal and brought into
court. To the indictment he pleaded not guilty, and able and eminent
counsel appeared to defend him.
Callender not being prepared with the testimony necessary to substantiate
his defence, an affidavit was filed in due form, which stated ample
grounds to postpone the trial of the cause, and upon which the Court
ought certainly to have granted a continuance.
What are the objections raised against the motion to postpone, founded
on this affidavit, and the reasons urged in support of the respondent’s
refusal to put off the trial? They are truly singular. One is a refined
technical objection to the form of the affidavit, because it does not
state in strict legal language that Callender expected to be able to
procure at a future time the attendance of the witnesses. But he states
facts which prove on the face of them, that by postponing the trial
he could obtain the benefit of their testimony, for he mentions the
places of their residence, all of them within the United States. I say
the case is stronger than if, _secundum formam_, he had sworn that he
could procure their attendance. When he tells where they lived, the
Court must have been satisfied on this point. However, the respondent
assigns a curious reason to be sure, for his conduct. If the witnesses
who were absent were actually before the Court, and were to prove all
that Callender had stated or expected, it would riot have justified all
the libellous passages that had been selected from the book and thrown
into the indictment. How was Judge Chase to know but that Callender had
testimony as to those points on which his absent witnesses would not have
deposed?
The respondent, it seems, was willing to postpone it for a particular
period, provided he would be present at the trial. Nay, he would go all
the way to Delaware, and return again to accomplish an object he seems to
have had so much at heart. In my humble opinion this part of the Judge’s
conduct proves stronger than almost any other of his acts, the motives
which influenced him. If I were to select any one circumstance to prove
that his intentions were improper, I would lay my hand on this. “I will
not postpone this important trial until the next term, because, according
to the arrangement, I shall not then be on this bench, but I will agree
to delay it for a shorter period, and travel three or four hundred miles
in order to accommodate Mr. Callender with my presence on the trial.”
Did any lawyer ever hear of such conduct? Did they ever hear of a court
adjourning to a particular time, to try a single solitary case of a
common misdemeanor?
I do respectfully submit, for the reasons assigned, that the conduct of
the learned judge, in refusing to postpone the trial of Callender, was a
most manifest violation of the principles of law, and was attended with
such circumstances as render it highly improbable that it proceeded from
a mere error in judgment.
From Virginia, flushed with success and elated with his triumph over
Callender, the respondent hastened to Delaware. The night preceding the
day on which the respondent was to hold the court, he lodged at the
village of Christiana, about five miles distant from the court-house.
From this place he rode into Newcastle the next morning with Dr. William
McMechin, who was summoned as a grand juror to the court, and it is in
evidence, was actually sworn on the panel. This is the very man, who,
it is represented, gave the respondent the information relative to the
seditious printer. As a grand juror it was his duty to communicate to
his fellows any offences against the laws of the land which had come to
his knowledge, and it was the duty of the grand jury to present every
criminal act punishable by the laws of the United States. We are bound to
pronounce that Mr. McMechin put the rest of the grand jury, for he was
sworn so to do, in complete possession of all the information which he
communicated to the respondent. With these circumstances, the respondent
was perfectly well acquainted. He saw with his own eyes the very man
impanelled on the inquest who had opened the budget to him, and knew it
was his duty to unfold the intelligence to his brethren. The respondent
proceeds to deliver an appropriate charge to the jury--a charge free
from all those blemishes which stain a subsequent performance of the
same kind. He presented to their view in chaste and eloquent language
the proper subjects for their inquiry. In my humble opinion it may have
been equalled but never excelled. I considered it, according to my poor
judgment at the time, a perfect model; the most finished piece in style
and substance that I ever heard addressed to a grand jury. Had he stopped
here he would have been an object of praise rather than complaint. Had
he been contented with discharging his official duty, he would have been
entitled to our thanks, rather than merited an accusation.
The grand jury retire to their chamber, and after some time return to
the box. To the credit of the then marshal of the Delaware district, I
must observe, that he had manifested on that occasion, (as I know him
uniformly to have done, even when the storm of party raged with the
greatest violence,) in the selection of his jurors, an independence
becoming the responsible station which he filled. They were not men of
pliant tempers, nor were they carefully culled from the ruling sect,
but chosen without respect to party, from the most respectable of both
sides. It gives me great pleasure to speak of such conduct, because I
wish to hold it up as an example. The grand jury were asked by the clerk
in the usual form, “Have you any bills or presentments to make?” Their
foreman respectfully answered they “had not.” On this, the judge could
no longer bridle his temper. He had anticipated perhaps a treat from the
prosecution of an obnoxious printer, and expected to regale his palate
with a favorite dish. Provoked by disappointment, his passion burst into
a flame, and he condescended to stoop from his bench, for the purpose of
seizing on his prey. It was at this period he betrayed emotions so highly
reprehensible, and so very unsuitable to the dignity of his situation.
In a tone, well adapted to the exceptionable language, he observed to
the grand inquest, “What! no bills or presentments?” This was matter
of astonishment to him, and he proceeded to make the observations so
correctly described by Mr. Read, the District Attorney of Delaware, a
gentleman of irreproachable life and manners, whose character is not
only unimpeached but unimpeachable, and Mr. Lea, one of the grand jury
themselves, to whom part of the observations were addressed, a merchant
of established reputation, and as a man respected by all who are
acquainted with him. Sir, after the observations I have made on positive
and negative testimony, I will not stop to demonstrate that every thing
stated by Mr. Read and Mr. Lea was said, though not recollected by some
other witnesses. I will barely mention that all the extra-judicial
remarks of the respondent were addressed to the grand jury or to the
district attorney. They must, therefore, naturally be presumed to have
paid the strictest and closest attention to all that fell from the
learned judge, and we have produced one of the grand inquest themselves,
and the district attorney, to prove the language he used. I feel
confident, under these circumstances, that implicit credit will be given
to them. I am also convinced that the statement made by the respondent
is scarcely more favorable to his cause. The grand jury repeat, to the
interrogatory put to them by the respondent, the answer which they gave
to the previous question of the clerk, and request additionally that they
may be discharged, as many of them were farmers, and it was hay harvest,
a very busy season with them. But no matter for that, the business of the
persecution, for I will not say prosecution, must go on if possible. The
judge would not discharge the grand jury on the first day, agreeably to
general practice, as proved by Judge Bedford, though pressed so to do.
He proceeds to give them information of the seditious temper which had
manifested itself in the State, and particularly in Newcastle County: a
county, which, suffer me to say, is well known from its old and unshaken
patriotism from the Revolution to the present day. But he did not stop
here; he proceeds to mention a seditious printer, point out the place
where he lived, and the borough of Wilmington, justly celebrated for
its uniform attachment to the cause of republicanism, and, according to
his own answer, to specify the title of his paper, and just as his name
was escaping from his lips, a returning sense of propriety checked his
speech. Sensible how deeply he had committed himself already, he paused
for reflection. But he had gone too far to effect a safe and honorable
retreat. He calls on the district attorney to know if a file of the
papers cannot be had. Some officious person offers to procure them, and
the respondent directs the district attorney to examine them and lay them
before the grand jury, who are ordered to attend the next morning. They
do accordingly attend, the file of the papers is laid before them and
examined. Behold, after all his exertions, the respondent had his labor
for his pains; after all this noise and bustle _montes parturiunt_, and
not even _ridiculus mus nascitur_. The grand jury return once more to
the box without any bills or presentments, and the learned judge with
admirable address covers his defeat.
The conduct of the learned judge at the circuit court in Maryland,
furnishes, I consider, one of the strongest articles of impeachment. I
had intended to have dilated very much at length on this charge, but
the fatigue of yesterday has really indisposed me, and I have already
trespassed too much on your time.
Every member of this Court must have been sensible of the impropriety
of the respondent’s conduct on that occasion. Every reflecting man must
be decidedly opposed to the idea of blending political discussion with
the legal observations which ought to proceed from the bench. A party
harangue little comports with the temperate and learned charges to be
delivered by the president of a court. The character of an electioneering
partisan, whose rostrum is a stump, or whose stage is the head of a
hogshead, is utterly inconsistent and incompatible with that of a grave
and upright judge. The duty of a judge is to expound the laws, and not
to exercise the office of a censor over them, and much less to disgrace
himself by reprobating them in a manner calculated to excite groundless
alarm and apprehensions in the minds of the people, and to alienate their
affections from the Government. Every man in his individual capacity
possesses the undoubted right to advocate the political principles
which he believes most beneficial to his country. The respondent
as an individual is entitled to this privilege in common with his
fellow-citizens, and to the free exercise of his splendid talents in such
a case. But does this justify him as a judge in his judicial character,
and from the judgment seat, to preach political sermons, and impose
his private dogmas on the people, under the garb of administering the
laws? Sophistry may for a moment confound two things perfectly distinct
in their nature and effect, but the mist vanishes before the light of
argument.
It will be conceded that there yet exist State jealousies against
the General Government, the acts of which are closely watched and
scrutinized. When the Constitution of the United States was framed, it
was the legitimate offspring of a liberal spirit of accommodation, which
reconciled jarring interests, _discordia semina rerum_. It requires
the patriotic exertion of every good man to preserve and to promote a
reciprocal cordiality between the General and State Governments. The
officers particularly of each should manifest a respect and reverence
which would inspire at once confidence and attachment. What language can
express the criminality of the respondent, when from the bench of the
United States he undertook to thunder anathemas against the act of the
Legislature of an individual State? Was this a part of his duty, or was
it not? Can there be a doubt, sir, but that it was a gross violation of
his duty, and that the respondent well knew it at the time? Yet such were
his unbridled passions and his uncontrolled prejudices, that, regardless
of the station which he held, and the dignified post which he occupied,
he did not hesitate to commit the character of the United States by
conduct which must have irritated the audience against the government
of Maryland and its officers. If ever a _mobocracy_ take place in this
country, it will be brought about by such instruments and such conduct.
Let those clothed with the laws become the violators of them, let the
judges of the United States issue fulminations against the measures of
individual States, and the judges of the different States retaliate,
by declaiming against the acts of the General Government, and the
consequences are easily foreseen.
When a poor miserable object like Callender, without character and
without influence, censures the measures of our Administration, or
reprobates an unconstitutional law, the respondent considered him guilty
of a crime and deserving of punishment. But a man elevated to the bench
may declaim in the strongest language against any measure or law of
the United States, or of an individual State with perfect impunity!
Recollect, sir, that if the defendant be justified in reprobating a
single law of the United States, he has the right to reprobate them
all indiscriminately. It is without question the duty of a judge to
inculcate a respect and a reverence for the laws of the land. But, sir,
the respondent, so far as he was able, has endeavored to excite the
indignation of the people against them, and to terrify them into an
opposition to measures which he has chosen from the bench to denounce,
by the dread of a _mobocracy_ and other alarming stories unworthy the
columns of a common newspaper, and scarcely equalled since the days of
the Rye House, and of Titus Oates.
WEDNESDAY, February 27.
Mr. RANDOLPH.--Mr. President: The course which has been pursued by my
learned colleagues and right excellent friends leaves but a barren field
in which to glean after them. I shall, therefore, present you with the
most condensed view that I can take of the subject, endeavoring, as far
as possible, to avoid the ground which has been already trodden; and
should I fail in this attempt, I hope to be pardoned, as having been
absent during a great part of this discussion. Very far indeed is it from
my intention, by tiresome repetitions, yet more to weary the patience of
the Court, and prolong that decision which is anxiously awaited by all.
I was not present when the defence was opened, in a style so honorable
to himself, by the junior counsel of the respondent, (Mr. Hopkinson.) I
was then ill abed. I regret the loss of the very able argument which he
is said to have urged against the first article. God forbid that the time
shall ever come with me when merit shall be disparaged because found in
an adversary. Report speaks fairly of the gentleman’s performance, and I
am willing to credit her to the utmost extent.
Suffer me to say a few words on the general doctrine of impeachment,
on which the wildest opinions have been advanced--unsupported by the
constitution, inconsistent with reason, and at war with each other.
It has been contended that an offence, to be impeachable, must be
indictable. For what then I pray you was it that this provision of
impeachment found its way into the constitution? Could it not have said,
at once, that any civil officer of the United States, convicted on an
indictment, should (_ipso facto_) be removed from office? This would be
coming at the thing by a short and obvious way. If the constitution did
not contemplate a distinction between an impeachable and an indictable
offence, whence this cumbrous and expensive process, which has cost us so
much labor, and so much anxiety to the nation? Whence this idle parade,
this wanton waste of time and treasure, when the ready intervention of a
court and jury alone was wanting to rectify the evil? In addition to the
instances adduced by my right worthy friend, (Mr. Nicholson,) who first
addressed the Court yesterday, permit me to cite a few others by way of
illustration. The President of the United States has a qualified negative
on all bills passed by the two Houses of Congress, that he may arrest
the passage of a law framed in a moment of legislative delirium. Let us
suppose it exercised, indiscriminately, on every act presented for his
acceptance. This surely would be an abuse of his constitutional power,
richly deserving impeachment; and yet no man will pretend to say it is
an indictable offence. The President is authorized by the constitution
to return any bill presented for his approbation, not exceeding ten
days, Sundays excepted, within which period he may return it to the
House wherein it originated, stating his reasons for disapproving it.
Now let us suppose that, at a session like the present, which must
necessarily terminate on the third of March, (and that day falls this
year on a Sunday,) the President should keep back until the last hour of
an expiring Congress, every bill offered to him for signature during the
ten preceding days, (and these are always the greater part of the laws
passed at any session of the Legislature,) and should then return them,
stating his objections, whether good or bad is altogether immaterial.
It is true that a vote of two-thirds of each branch may enact a law in
despite of Executive opposition; but, in the case I have stated, it would
be physically impossible for Congress to exercise its constitutional
power. Indeed, over the bills presented to the President within nine days
preceding its dissolution, the Legislature might be deprived of even the
shadow of control, since the Executive is not bound to make any return
of them whatever. Now, I ask whether such misconduct in the President
be an indictable offence? And yet is there a man who hears me who will
deny that it would be a flagrant abuse, under pretence of exercise of his
constitutional authority, for which he ought to be impeached, removed,
and disqualified? Sir, this doctrine, that impeachable and indictable are
convertible terms, is almost too absurd for argument. Nothing but the
high authority by which it is urged, and the dignified theatre where it
is advanced, could induce me to treat it seriously. Strip it of technical
jargon, and what is it but a monstrous pretension that the officers of
Government, so long as they steer clear of your penal statutes--so long
as they keep without the letter of the law--may, to the whole length of
the tether of the constitution, abuse that power, which they are bound to
exercise with a sound discretion, and under a high responsibility for the
general good?
Mr. President, through every stage of this transaction you perceive
every symptom of guilt--trepidation, remorse, and self-abasement. Look
at the consultation at Rawle’s, who was followed home by the judges as
soon as the Court rose. Recollect the conversation which ensued, and
the conduct of the Court on the following day, when the respondent is
said to have atoned for his misbehavior; although, in the same breath,
you are told there was no offence to expiate. Do you recognize in that
procedure an honorable and manly acknowledgment of unintentional error,
which, from a sense of justice, the respondent was anxious to rectify? Or
do you behold the sullen perverseness of guilt, half ashamed to confess
its offences, yet trembling at their consequences?--now soothing, now
threatening its adversary--every characteristic of conscious crime? Sir,
I blush for the picture which the gentleman has drawn of his client; and
I ask you, Mr. President, if such a character is fit to preside in a
court of justice?--a man whose violent temper and arbitrary disposition
perpetually drives him into acts of tyranny and usurpation, from which,
when vigorously opposed, he must disgracefully recede; equally ready to
take an untenable position, or meanly to abandon it. To-day, haughty,
violent, imperious; to-morrow, humble, penitent, and submissive;
prostrating the dignity of his awful function at the feet of an advocate,
over whom, but the day before, he had attempted to domineer. Is this
a character to dispense law and justice to this nation? No, sir! It
demands men of far different stamp--firm, indeed, but temperate; mild,
though unyielding; neither a blustering bravo, nor a timid poltroon. I
speak not of private character; with it I have nothing to do. It is the
official conduct only that concerns me. I have no hesitation in saying
that such men are not fit to preside in your judiciary; and that the
greatest abilities, when joined to such tempers, serve but still more to
disqualify their possessors.
I must here reiterate my regret at losing the argument of the gentleman
who opened the defence. I understand him to have said, (speaking of
Fries,) “Could that man be ‘innocent,’ who had been twice convicted
of treason? Could he be ‘illiterate,’ who pretended to expound the
constitution? Could he be ‘friendless,’ who had arrayed his numerous
followers in opposition to the laws of his country?” Sir, this is a very
pretty specimen of antithesis; but, unfortunately for itself, it proves
too much, whilst, as to the question before the Court, it proves nothing.
Does the gentleman believe the London mob, in 1780, to have been among
the most influential men in England? or, because their discontents grew
out of religion, that they were more deeply read in canon law than any
other body of men in that kingdom? They far surpassed the Northampton
rioters in depth and intricacy of research. They undertook to expound
the Constitution of the Church of England. But, unfortunately for this
gentleman, the guilt or innocence of his honorable client is in nowise
affected by the guilt or innocence of this poor German and his comrades.
The respondent stands charged with a departure from the principles of the
constitution and the established forms of law, in conducting the trial
which was to ascertain the guilt or innocence of John Fries. What has
this to do with his character? How does that affect the question? Guilty
or innocent, he was entitled to a fair and impartial trial, according to
the known usage and forms of law; for, be it remembered in such cases,
_form_ is _substance_. It is the denial of this sacred right, which
the constitution equally secures to the most hardened offender as to
persecuted virtue--this daring outrage on the free principles of our
criminal jurisprudence, that constitutes the respondent’s crime. If Fries
was innocent, what language can sufficiently reprobate the conduct of
the judge? An innocent man, by his procurement, iniquitously consigned
to an ignominious death. If guilty, he ought to have expiated his guilt
upon a gibbet. But what was the fact? The President of the United States,
in consequence of the arbitrary and unprecedented conduct of the Court,
was, in a manner, _compelled_ to pardon him. The public mind would never
have brooked the execution of any man thus tried and condemned. By the
misdemeanor of the respondent, then, to rescue the administration of
justice from the foulest imputation, to make some atonement for the
offended majesty of the constitution, the Executive was reduced to the
necessity of turning loose upon the country, again to sow the seeds of
disaffection and revolt, a man represented by the adverse counsel to be
every way desperate and daring--a traitor and a rebel. Upon what other
principle, sir, can you account for the President’s application to the
prisoner’s counsel, and his subsequent pardon? I repeat, Mr. President,
that it is wholly immaterial to the question before you, whether John
Fries was or was not a traitor. Either alternative is fatal to the
respondent. He is charged with oppression and injustice on the trial, and
you have not only the clearest testimony of the fact, but it is in proof
before you that such was the President’s motive in issuing the pardon. He
must have believed that the sentence was in itself unjust, (which serves
but to aggravate the respondent’s guilt,) or he must have acted (as I
am unwilling to concede he appears to have done) on the ground that,
however deserving of punishment, the prisoner had been unfairly tried,
and his condemnation illegally obtained. Whichsoever of these positions
be _true_, the defence set up on behalf of the respondent is _false_.
What have you seen? A man condemned to death, unheard, by a prejudiced
jury and an unrighteous judge, thirsting for his blood; the Executive
demanding to hear that defence, to which the Court would not listen,
and extending the arm of its protection to snatch the victim from the
oppressor’s grasp. And will you now turn this man loose upon society,
armed with the terrors of the law and secure in impunity, to perpetrate
similar offences?
But our opponents have not only resorted to the practice in civil cases,
which here is totally inapplicable, but they have brought forward English
precedents before the Revolution, and decisions of the court of _Star
Chamber_! Precedents drawn from the worst periods of their history,
from hard, unconstitutional times--decisions from the most flagitious
tribunals, whose very name has passed into a proverb of corrupt,
unfeeling tyranny. For an account of this Star Chamber I would refer you
to John, Lord Somers, of whom it has been said, not with more elegance
than justice, that, “like a chapel in a palace, he alone remained
unpolluted, whilst all around was profanation and uproar.”
“We had a privy council in England (says this great constitutional
lawyer) with great and mixed powers; _we suffered under it long and
much_. All the rolls of Parliament are full of complaints and remedies;
but none of them effectual till Charles the First’s time. _The Star
Chamber was but a spawn of our council_, and was called so only because
it sat in the usual council chamber. It was set up as a formal court in
the third year of Henry VIII., _in very soft words_, ‘to punish great
riots, to restrain offenders too big for ordinary justice; or, in modern
phrase, to preserve the peace.’ ‘_But in a little time it made the nation
tremble._ The privy council came at last _to make laws by proclamation,
and the Star Chamber ruined those that would not obey_. At last they fell
together.’” (Hatsell’s Precedents, vol. 4, page 65, Note.) Is this the
court whose adjudications are to justify the decisions of an American
tribunal in the nineteenth century? And in a case of _treason_, too? Is
this vile and detestable tribunal (whose decisions, even in England, are
scarce suffered to be drawn into precedent) to furnish rules of conduct
for the courts of this great confederate Republic? Yes, sir, you have not
only been obliged to listen to Star Chamber doctrines, but you have been
referred to one most arbitrary magistrate to justify the oppressions of
another. I allude to Chief Justice Keelyng. Who he was may be seen in the
same volume of Hatsell, page 113.
“On the 16th of October, 1667, the House being informed, ‘that there
have been some innovations of late in trials of men for their lives
and deaths;’ [the very offences charged upon the respondent;] ‘and in
some particular cases restraints have been put upon juries, in the
inquiries’--this matter is referred to a committee. On the 18th of
November, this committee are empowered to receive information against
the Lord Chief Justice Keelyng, for any other misdemeanors besides those
concerning juries. And on the 11th of December, 1667, this committee
report several resolutions against the Lord Chief Justice Keelyng, of
illegal and arbitrary proceedings in his office.” The first of these
resolutions is: “That the proceedings of the Lord Chief Justice, in
the cases now reported are innovations in the trial of men for their
lives and liberties: and that he hath used an arbitrary and illegal
power, which is of dangerous consequence to the lives and liberties of
the people of England, and tends to the introducing of an arbitrary
government.” The respondent’s own case. The second resolution is,
“that in the place of judicature”--[how does this bear upon the eighth
article?] “the Lord Chief Justice hath undervalued, vilified, and
contemned Magna Charta, the great preserver of our lives, freedom, and
property.” And the authority of this infamous judge, the minion of
Charles II.,--of judges in the most corrupt period of English history,
from the restoration of that king to the revolution, is relied upon by
his counsel to absolve the respondent from guilt. Permit me to do their
client more justice. I do believe that the man who is held up here as a
revolutionary patriot, of 1776, although in a moment of human infirmity
he hath imitated their crimes, would blush to be justified by their
example. For his sake I rejoice in that visitation of God which hath
saved him this last degradation: from seeing his defence rested upon the
authority of those infamous times, and yet more infamous men, with whom,
with all his weakness and all his infirmities upon him, he would yet
(I am persuaded) disdain a comparison. Yes, I do feel relieved that he
hath been spared the disgraceful spectacle of beholding himself defended
by his friends on principles more unjust and iniquitous, if possible,
than have ever been imputed to him by his enemies: that he hath not been
reduced to see those very decisions, prior to the revolution, cited in
his defence, which he himself denied to a fellow-creature put in jeopardy
of life! The benefit of these decisions (it seems) can be taken only by
the powerful oppressor--they offer no shelter to his victim. I thank God,
sir, that I have indeed studied at the feet of far different Gamaliels
from the honorable Attorney-General of Maryland, or those by whom, it
would appear, he has been brought up; that I have drawn my notions of
justice and constitutional law from a far different source--not from
the tribunals of Harry VIII., nor the tools and parasites of the house
of Stuart, but from the principles, the history, and the lives of those
illustrious patriots and their disciples, who brought the Star Chamber to
ruin, and its abettors to the block.
But I cannot consider the able Attorney-General of Maryland quite sincere
in the doctrine which he has advanced. He shines indeed a luminary in
this defence. Mr. President, there is an obliquity in human nature that
too often disposes us rather to applaud the brilliant, though pernicious
ingenuity that can “make the worse appear the better reason,” than
the humble but useful efforts of a mind engaged in an honest search
after truth. There is something fascinating in such a display of the
powers of the human mind. The vanity of the whole species soothes
itself with the excellence of an individual. We yield to the illusions
of self-love--“_we_ lay the flattering unction to our souls”--and are
cheated and abused. It is under this perverse bias of our nature that I
render to the honorable Attorney-General of Maryland the willing tribute
of my admiration. But, he will pardon me, I cannot suppose him serious. I
will not do him the injustice to believe that to a noble motive, to long
habits of political and social intercourse, a friendship of thirty years’
standing, he has refused what he himself tells you is done, every day,
nay in nine hundred and ninety-nine cases in a thousand, by persons of
his profession, for a mercenary consideration. What has he said? “That,
in defence of their clients, lawyers are in the daily habit of laying
down as law what they know not to be law.” Mr. President, when I see a
man of his unrivalled resources reduced to the miserable shift of Star
Chamber doctrines and precedents before the revolution--and, conscious,
no doubt, of the actual weakness of his defence, calling to his aid all
the force of wit, ingenuity, repartee, pleasantry, and good humor, what
inference must I draw? and what must be the conclusion of this honorable
Court?
On the subject of Mr. Taylor’s testimony, its rejection is attempted
to be defended by a solitary precedent, _in a civil case_, drawn from
a reporter, who, I am informed by gentlemen of the first professional
character, is far from being considered as very good authority. I mean
McNally. In support of this article I might urge as well the admissions
of the honorable Attorney-General of Maryland, as the universal practice
of our courts. What said Mr. Robertson--and what said the Chief Justice
of the United States, on whose evidence I specially rely? He never knew
such a case occur before. He never heard a similar objection advanced
by any court, until that instance. And this is the cautious and guarded
language of a man placed in the delicate situation of being compelled to
give testimony against a brother judge. What more could you expect from
a person thus circumstanced? What does it prove but that the respondent
was the first man to raise, to invent such an objection to a witness?
Can any one doubt Mr. Marshall’s thorough acquaintance with our laws?
Can it be pretended that any man is better versed in their theory or
practice? And yet in all his extensive reading, in his long and extensive
practice, in the many trials of which he has been spectator, and the yet
greater number at which he has assisted, he had never witnessed such a
case. It was reserved for the respondent to exhibit, for the first, and
I trust, for the last time, this fatal novelty, this new and horrible
doctrine that threatens at one blow all that is valuable in our criminal
jurisprudence.
Against the fourth article the Attorney-General of Maryland hath adduced
a similar and doubtful authority, in defence of his client. And here
again I bottom myself upon the testimony of the same great man, yet
more illustrious for his abilities than for the high station that he
fills, eminent as it is. He declares that he has never known a similar
requisition made by any court; that where the propriety of questions
verbally propounded, has been denied, or for the sake of precision,
(where they were intricate,) they have been reduced to writing, at the
request or order of the Court; but in the first instance, and before they
had been stated verbally, _never_, within the compass of his experience.
And what inference can any candid, unprejudiced mind draw from these
repeated, and, until then, unprecedented acts of interference by the
judge, on behalf of the prosecution, but that, instead of an umpire, he
was a partisan?
With regard to his deportment toward the counsel, I shall call the
attention of the Court not to the statement made by themselves--because
I question it in the slightest degree? God forbid--I know those able
and honorable men too well--but because I would deprive our opponents
of their almost sole argument--the personal irritation which they
allege those witnesses must have felt. Waiving then any remarks on
their testimony, powerful as it is, I again ask you, what said the
Chief Justice? And, if I may say so, _what did he look_? He felt all
the delicacy of his situation, and as he could not approve, he declined
giving any opinion on the demeanor of his associate. What does Mr.
Robertson say? In substance, every thing that has been deposed by
other witnesses: “That the judge always spoke in the first person
singular.” And here I will remark, that the short hand report which
this gentleman made of the trial, and which he has given in evidence,
was published, in the first instance, as a defence of Mr. Chase against
alleged misrepresentations of his conduct on that occasion. It cannot
be considered, therefore, as an _un_favorable view of the transaction,
at least so far as the respondent is concerned. What says Mr. Gooch?
That the judge was very ‘_yearnest_’ with the counsel; that they were
much abashed; that he set them down; that they appeared alternately red
and pale; that he exhibited their confusion to the mirth of all the
bystanders: and Colonel Taylor tells you, “that the conduct of the judge
had the full effect it seemed intended to produce--to abash the counsel
for the prisoner, and turn them into ridicule, for that every body
laughed but themselves.”
But the ingenious Attorney-General of Maryland, whose fruitful invention
is never without resource, has endeavored to persuade you, that this
conduct was not merely justifiable, but even meritorious. That the
design of the counsel was to irritate and inflame the people; and the
respondent, dreading a riot, had no object but to keep the audience in a
good humor; and that, by a seasonable exertion of his acknowledged wit
and pleasantry, he completely succeeded in turning their weapons upon
themselves, and totally defeated their purpose. This apology reflects
credit on the inventive faculty of him who makes it, and yet what is
it but an admission of the charge? Look to the evidence. You will see
nothing to support the twist which has been attempted to be given to
it--no apprehension of disorder and confusion but what grew out of the
insufferable tyranny and insolence of the judge. Where was the respondent
at this time? In some obscure corner of the Union--some remote district
notorious for disaffection, infamous for its spirit of insurrection, far
removed from the protection of State or Federal authority? No, sir, he
was in the enlightened capital of Virginia, a country never disgraced by
rebellion--unless the epithet be applied by some squeamish politician
to our glorious revolutionary struggle--a State whose soil has never
been stained by insubordination to law. No, sir, he was sitting within
a stone’s throw of the residence of the Governor of Virginia, a man of
whom I shall say nothing. Let the exalted stations he has more than
filled, the high public trusts on which he has seemed rather to confer
honor than receive it, his unshaken constancy in the worst of times, the
dismay and confusion of his enemies, whose vain aspersions have passed
him like the idle wind--let the confidence of a united people speak his
eulogium. The respondent was sitting within musket-shot of a cantonment
of Federal troops. Why were these troops placed there at that time, and
why were they kept there for some time afterwards, belongs not to my
present purpose. It is enough to say that they were a part of our famous
provisional army--“_fruges consumere nati_”--to ascertain their readiness
to protect, in any outrage on the law or constitution, (then practised,
or meditated,) the government that maintained them in dissolute idleness.
Governor Monroe was more interested in the respondent’s safety than he
himself appears to have been. He trembled lest the indignation of the
people should get the better of their good sense, and hurry them into
some act of violence, that would cast an odium on the State, and afford
matter of triumph to her enemies. That the respondent’s object was to
goad her citizens to some outrage, which might justify the humiliation
that was preparing for her, there is too much reason to believe, and that
he would have succeeded, but for the intervention and influence of that
excellent man, and the persuasions of the counsel themselves, whom the
Attorney-General of Maryland would represent as endeavoring to excite
public commotion, that he may find some shelter for the enormities of his
client.
But our doctrine, it is said, goes to prostrate the rights of the
accused--where?--at the feet of juries. There may they for ever lie, but
never at the foot of a judge. The gentleman from South Carolina (I beg
his pardon) deprecates the placing of criminal law solely in the power
of juries. He would not have the life of a man depend on their decision
of a point of law. But it is the glorious attribute of jury trial, that
the question of guilty or not guilty, involving both law and fact, _that_
law as well as _that_ fact the jury alone is competent to determine.
It is the necessary consequence of the general verdict which they are
required to find. The very able and learned Attorney-General of Maryland
indeed says that this is an incidental _power_, rather than a _right_ of
the jury. But, sir, what is that power which no man may question, but a
right? For, whether incidental or direct, the exercise of it is final and
complete, if in favor of the accused; and the power of the Court to award
him a new trial is further protection to the prisoner against abuse.
There is no specific power given, in so many words, by the constitution,
to Congress, to punish robberies of the mail; but it is incidental to
the right of establishing post offices and post roads, and necessary to
carry the specified power into effect. This curious distinction between
“_right_ and _power_, _direct_ and _incidental_,” is an _ignis fatuus_
of the learned gentleman’s composition to bewilder and mislead us from
our object, that we may be lost and led astray over a wide moor of
absurdities. The right of the jury is not the less, whether immediate,
or derivative; as Congress possess the power to pass all laws necessary
to carry any delegated power into effect, in like manner juries possess
every power necessary to the general verdict which they have a right to
give. The violation on the part of the judge of the incidental power, as
much subjects him to punishment, as if he had invaded the original right
over the fact, to which it is appendant. What would he say to a robber
of the mail claiming impunity because the power to make the offence
penal was incidental, and not specified in the constitution? But, say
gentlemen, we admit the _power_ in the jury, we only deny the _right_:
and in this tissue of self-contradictions they declare, that whilst a
jury is bound by the exposition of the law, as laid down by the Court,
yet they have not the right to determine whether the facts come within
the law. Can there be a greater absurdity?
“Whilst the jury have no right to decide the law, they must decide
whether the facts come within the law!” If the jury is tied down by the
Court’s construction of the law, is it not plain that _they_ do _not_
decide whether the fact is, or is not, embraced by the law? but that
whilst they find naked fact, it is the _Court_ that decides whether that
fact does, or does not, come within the law? Gracious God! is it come
to this? Are the great principles for which our forefathers contended,
and many of yourselves have bled, now to be frittered away by technical
sophistry? Is the same doctrine to be established here in capital
offences--in cases of treason--that Lord Mansfield attempted to impose
on the people of England as the law of libel, and which they would not
endure? Shall principles of criminal law which they have scouted, even
in cases not capital, be established here for the decision of capital
offences? that whilst the jury finds the facts, their application to the
law shall depend solely on the will of the Court? I deny the gentleman’s
law; and assert that, as an American citizen, I would refuse to be
bound by it. A man is charged with having committed certain treasonable
acts. The constitution has defined treason to consist “in levying war
against the United States, or in adhering to their enemies, giving them
aid and comfort.” But the Court, assuming to themselves a more than
Papal infallibility--the exclusive exposition and construction of the
constitution--tell me, as a juror, to surrender into their hands my
conscience and my understanding; that, as a levying of war is treason, so
is the picking up of a pin a levying of war; that I, an unlearned layman,
must not presume to expound the holy scripture of the constitution, but
must leave that to the elect; and, if the fact of his having picked up
the pin be proved to my satisfaction, I am bound to find the prisoner
guilty of levying war against his country--to convict him of treason.
Sir, the parallel runs on all-fours; for there is nothing to uphold this
monstrous judicial assumption, but that which supported the pretensions
of the Roman Pontiff--the willing obedience of ignorant superstition. If
the jury is contumacious, if, whilst they confess their entire conviction
of the truth of the fact charged in the indictment, they deny the legal
doctrine and acquit the prisoner, the Court is without redress. They
may bully and look big--there is no help. Put the case of murder. A
killing with malice aforethought is charged upon the prisoner--there is
no dispute about facts--it is admitted that the party arraigned did kill
the deceased. Shall I, a juror, contenting myself with deciding a fact
that nobody disputes, surrender to the Court the question of law, should
they attempt to usurp it, (as that killing with a particular weapon is
a killing with malice prepense,) and find a man guilty of murder whom I
believe to have acted in self-defence?--in defence of life, or, what is
dearer than life, of reputation? No, sir; I will not find him guilty,
although all the courts in the universe should instruct me to do so. I
will look to the great precept, “do as you would be done by,” and say, “I
would have done so too, and, therefore, I will not say, that man ought
not so to have done.” And what is there, sir, in the words, “_levying of
war_” more unintelligible than in the words, “_malice prepense_?” The
first, being altogether a matter of fact, would appear more exclusively
the province of the jury than the last, which rather partakes of a
question of opinion. If you leave the law in criminal cases to the jury,
(as well as the fact,) you are safe; but if your decision should sanction
the opposite doctrine, you set all our liberties, fixed by the decisions
of ages, afloat on an ocean of uncertainty and contention. We have no
beacon, no compass, no polar star to direct our course. If you suffer
the rights of a jury to be thus invaded on a criminal trial--on a trial
for life and death--you bind us in conclusions more fatal than those of
the Church of Rome. You force us one moment to say whether such a fact
amounts to such a crime, and, the next, you will not permit us to know
what the crime is. I hope the marshal will never summon me on such a
jury. I give him warning; I will never surrender the constitution, my
understanding, and my oath to the “_grim gribber_” of a court of law.
I should consider myself as much entitled to decide the law for the
judge in a civil case, as bound by his decision of it in a criminal one.
Vain and futile is the attempt of the constitution to settle and define
treason, if that definition is to mean any thing or nothing at the option
of a corrupt judge. If this doctrine, sir, be denied by any member of
this honorable Court, let him, in his legislative capacity, move for a
bill “to render juries more obedient to the judges, and _especially in
criminal cases_.” Until that is done, I shall refuse obedience to their
dictates, and act as a juror upon the principles which I have avowed.
Mr. President, much as I regret the trespass that I have already
committed on your patience, I must (painful as it may be to you, and it
is not less so to myself) attempt something like a review of the conduct
of this judge. In May, 1800, you find him in Philadelphia, engaged in
propagating and establishing the detestable doctrine of constructive and
implied treason, which, in England, has proved the dreadful engine of
persecution and murder. From thence you trace him to Annapolis; (not by
the blood of John Fries--no thanks, however, to him for that;) you hear
his declaration in presence of Mr. Mason. But this, his counsel tell you,
was all a joke, nothing but humor, sir; like his conduct at Richmond. If
you listen to them, you must become a Pythagorean, and believe that the
soul of Yorick himself has transmigrated into the body of this judge. It
is true he could not be the king’s jester, because, _unfortunately_, we
have no king, we have not yet reached that stage of civilization; but,
sir, he is the jester of the sovereign people, a jester at your laws
and constitution, and it is for you to say whether he shall continue
to exercise his function. This jocular conversation is likely to prove
a bitter and biting jest to the respondent. So serious did that most
intelligent and respectable witness deem it to be, that he locked it up
in his own bosom, without venturing to mention it to any human being.
He did not consider himself authorized to play with the fame of the
respondent, however disposed _he_ might be to sport with the feelings and
rights of others. This merry fit lasted a long time. He indulges the same
humor in the stage with Mr. Triplett, an entire stranger; and here let
me observe, in justice to this gentleman, that never did any man deliver
a more clear and unimpeachable testimony in a court of justice than this
witness. It is conclusive. When the judge made personal declarations
against Callender, could he be said to administer justice without respect
to persons? But, sir, one of our adversaries (Mr. Harper) protests
against this sort of evidence, and deems it highly inadmissible. Why?
Because, forsooth, it violates the sanctity of private conversation, and
wounds the feelings of gentlemen who may be called on as witnesses. Thank
God! sir, we live in a country where the law is open to all, and knows no
distinction between _gentlemen_ and _simple-men_. No man, I trust, has a
greater respect for the real gentleman than myself. When Francis I., the
accomplished monarch of the most gallant people of Europe, deemed it his
first distinction to be ranked as the first gentleman of his kingdom, he
did not hold that sacred character in higher reverence than I do. But
the respondent himself has told you that a court of justice is a coarse
sort of thing, blind to these nice discriminations; that the polished
address of a Chesterfield, and the rugged scowl of a Thurlow, in the eye
of the law are equal. Suppose a person killed, will not the Court hear
evidence of a previous declaration by the prisoner, of ill-will to the
deceased, as “that he would be the death of him,” &c.? or, will they stop
to ask whether it was uttered in a tippling-house, or a drawing-room; by
a ruffian in rags, or in ermine? and yet we are accused of lying in wait
for the respondent, of watching his unguarded and convivial hours, of
wounding the nerve of social intercourse to the quick. We are ministers
of justice, and as such, we know nothing of these delicate distresses,
equally unknown to our forefathers, to the framers of our free and manly
institutions. Their composition was of sterner stuff than this modern,
flimsy, fashionable ware. To their robust constitutions and strong
common-sense, these qualmish megrims, these sickly sensibilities of
modern refinement were happily unknown.
Follow the respondent, then, with the steady and untired step of justice,
from Philadelphia to Annapolis, from Annapolis to Richmond, and back
again to Newcastle. You see a succession of crimes each treading on the
heel, galling the kibe of the other--so connected in time, and place, and
circumstance, and so illustrated by his own confessions, as to leave no
shadow of doubt as to his guilt. You are to take the facts, not, as his
counsel would have you, isolated and dismembered, but embodied; a series
of acts indissolubly linked together, each supporting, each animated by
the vital principle of guilt that pervades and gives life to the whole.
God hath joined them; no man shall or can put them asunder. Carry your
mind back to the state of things in 1800; then advert to the testimony in
the case of Fries. Lewis, Dallas, Tilghman, and _even Rawle_, declaring
that they had never witnessed such a proceeding before; pronouncing the
conduct of the judge, on that occasion, to be altogether novel in the
annals of our criminal jurisprudence. The same spirit pervades his whole
career. But you are warned by the counsel (Mr. Harper) not to tarnish the
laurels of your political victory by an unmanly triumph over a fallen
adversary. He implores the tribute of a sigh for the mournful yew and
funeral cypress that bedecks the hearse of his political reputation.
Dreading the decision of your judgment, your sympathies are enlisted for
his client. An aged patriot, whose head is whitened with the hoar of
threescore and ten years, is presented to your afflicted imaginations:
broken with disease, compelled to employ his few and short intervals
from pain and sickness, to spend the last moments of a life devoted to
a thankless country’s service, in defending himself against a criminal
prosecution. Do we thirst for his blood? yet, even there, English
authorities would bear us out. Do we seek to lead him to Tower Hill? If
his heart will fly in his face, is it we who cast it there? Do we even
ask his disfranchisement? No, sir, we only demand the removal of a man,
whom the very suspicion of such crimes unfits for the high station which
he fills. A man bent with age and infirmity, struggling with misfortune,
is a venerable object, entitled to your sympathy, even although he were
not a patriot. Mine shall never be denied to such a character. But, sir,
mark the difference between Samuel Chase, powerful and protected, and
John Fries, feeble and oppressed. Look at the one lodged in a sumptuous
hotel, partaking of the best cheer, surrounded and supported by every
comfort of life, by a large and respectable circle of friends, indulged
with ample time for his defence, assisted by counsel second to none in
the land, unrestricted in the conduct of their cause. When I give a man
so situated my sympathy, it is not of so jejune a cast as to refuse
itself to the victim of his injustice--a hardy yeoman wrestling with
indigence and persecution--selling his last bit of property to support
a long imprisonment and meet the expenses of this very prosecution; a
soldier of the Revolution, with whom the words “stamp act” and “window
tax” were synonymous with slavery; who, in a moment of political
delirium, perhaps of intoxication, had instinctively raised his hand
against what he deemed an oppressive tax--immured in a dungeon, listening
only to the clanking of fetters; snatched from the bosom of his family,
to whom no doubt he was a kind parent and an affectionate husband--for be
it remembered he was popular and beloved among his neighbors--this man,
caught in the trap of judicial and constructive treason, at which common
sense revolts, laid by the heels, trembling at the charge, ignorant of
the extent of the law, without a friend to comfort and console him, no
counsel in his defence; such a man, so situated, is as much entitled to
my sympathy as any king that ever wore a crown, and he shall have it; he
shall have more, he shall have justice from this honorable Court. Yes,
sir, to my shame I confess, that my sympathy is not of this exclusive
sort. It is not scared by the homely garb of poverty and wretchedness. It
can feel for misfortune, even if it be not sumptuously arrayed.
We are asked to assign any rational motive for the conduct imputed to the
respondent. His object might have been to court the Administration which
he upheld and supported, to recommend himself to the President of the
United States, to obtain the Chief Justiceship. Those who are anxious to
attract the notice and favor of the powers that be, are not apt to put
their light under a bushel. The fulsomeness of sycophants, who always
overact their part, is proverbial. Sir, he might be aspiring to the
Presidency itself, and anxious to engage the favor of the leaders of his
party. Let it be remembered, the triumph of that day was complete, and
the reckoning of this day too remote from probability to be taken into
the account. Here, sir, you have a key to his whole conduct. It becomes
you, then, Mr. President and gentlemen of the Senate, to determine
whether a man whose whole judicial life hath been marked by habitual
outrage upon decorum and duty, too inveterate to give the least hope of
reformation, interwoven and incorporated with his very nature, shall
be arrested in his career, or again let loose upon society, to prey
upon the property, liberty, and life of those who will not rally around
his political standard. We have performed our duty; we have bound the
criminal and dragged him to your altar. The nation expects from you that
award which the evidence and the law requires. It remains for you to
say whether he shall again become the scourge of an exasperated people,
or whether he shall stand as a landmark and a beacon to the present
generation, and a warning to the future, that no talents, however great,
no age, however venerable, no character, however sacred, no connections,
however influential, shall save that man from the justice of his country,
who prostitutes the best gifts of nature and of God, and the power
with which he is invested for the general good, to the low purposes of
an electioneering partisan. We adjure you, on behalf of the House of
Representatives and of all the people of the United States, to exorcise
from our courts the baleful spirit of party, to give an awful memento to
our judges. In the name of the nation, I demand at your hands the award
of justice and of law.
FRIDAY, March 1.
The Court being opened by proclamation, the Managers, accompanied by the
House of Representatives, attended.
The counsel for the respondent also attended.
The consideration of the motion, made yesterday for an alteration of one
of the rules in cases of impeachments, was resumed: Whereupon,
_Resolved_, That in taking the judgment of the Senate upon the articles
of impeachment now depending against Samuel Chase, Esq., the President
of the Senate shall call on each member by his name, and upon each
article, propose the following question, in the manner following: “Mr.
----, how say you; is the respondent, Samuel Chase, guilty or not guilty
of a high crime or misdemeanor, as charged in the ---- article of
impeachment?”
Whereupon, each member shall rise in his place, and answer guilty or not
guilty.
The PRESIDENT rose, and addressing himself to the members of the Court,
said:
Gentlemen: You have heard the evidence and arguments adduced on the trial
of Samuel Chase, impeached for high crimes and misdemeanors: you will now
proceed to pronounce distinctly your judgment on each article.
The Secretary then read the first article of impeachment, as follows:
ARTICLE 1. That, unmindful of the solemn duties of his office,
and contrary to the sacred obligation by which he stood bound
to discharge them “faithfully and impartially, and without
respect to persons,” the said Samuel Chase, on the trial of
John Fries, charged with treason, before the circuit court
of the United States, held for the district of Pennsylvania,
in the city of Philadelphia, during the months of April and
May, one thousand eight hundred, whereat the said Samuel Chase
presided, did, in his judicial capacity, conduct himself in a
manner highly arbitrary, oppressive, and unjust, viz:
1. In delivering an opinion, in writing, on the question of
law, on the construction of which the defence of the accused
materially depended, tending to prejudice the minds of the jury
against the case of the said John Fries, the prisoner, before
counsel had been heard in his defence:
2. In restricting the counsel for the said Fries from recurring
to such English authorities as they believed apposite, or from
citing certain statutes of the United States, which they deemed
illustrative of the positions upon which they intended to rest
the defence of their client:
3. In debarring the prisoner from his constitutional privilege
of addressing the jury (through his counsel) on the law, as
well as on the fact, which was to determine his guilt, or
innocence, and at the same time endeavoring to wrest from the
jury their indisputable right to hear argument, and determine
upon the question of law, as well as the question of fact,
involved in the verdict which they were required to give:
In consequence of this irregular conduct of the said Samuel
Chase, as dangerous to our liberties as it is novel to our
laws and usages, the said John Fries was deprived of the
right, secured to him by the eighth article amendatory of the
constitution, and was condemned to death without having been
heard, by counsel, in his defence, to the disgrace of the
character of the American bench, in manifest violation of law
and justice, and in open contempt of the rights of juries, on
which ultimately rest the liberty and safety of the American
people.
When the PRESIDENT took the opinion of the members of the Court
respectively, in the form following:
“Mr. ----, how say you; is the respondent, Samuel Chase, guilty or not
guilty of a high crime or misdemeanor, as charged in the first article
of impeachment?”
Those who pronounced guilty, are:
Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,
Ellery, Franklin, Howland, Logan, Maclay, Moore, Stone, Sumter,
Worthington, and Wright--16.
Those who pronounced not guilty, are:
Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Giles,
Hillhouse, Jackson, Mitchill, Olcott, Pickering, Plumer,
Smith of Maryland, Smith of New York, Smith of Ohio, Smith of
Vermont, Tracy, White--18.
The second article was read by the Secretary, as follows:
ART. 2. That, prompted by a similar spirit of persecution and
injustice, at a circuit court of the United States, held at
Richmond, in the month of May, one thousand eight hundred,
for the district of Virginia, whereat the said Samuel Chase
presided, and before which a certain James Thompson Callender
was arraigned for a libel on John Adams, then President of the
United States, the said Samuel Chase, with intent to oppress
and procure the conviction of the said Callender, did overrule
the objection of John Basset, one of the jury, who wished to
be excused from serving on the said trial because he had made
up his mind as to the publication from which the words charged
to be libellous in the indictment were extracted; and the said
Basset was accordingly sworn and did serve on the said jury, by
whose verdict the prisoner was subsequently convicted.
Those who pronounced guilty on this article, are:
Messrs. Anderson, Breckenridge, Cocke, Condit, Ellery, Giles,
Howland, Maclay, Moore, and Sumter--10.
Those who pronounced not guilty, are:
Messrs. Adams, Baldwin, Bayard, Bradley, Brown, Dayton,
Franklin, Gaillard, Hillhouse, Jackson, Logan, Mitchill,
Olcott, Pickering, Plumer, Smith of Maryland, Smith of New
York, Smith of Ohio, Smith of Vermont, Stone, Tracy, White,
Worthington, and Wright--24.
The third article was read by the Secretary, as follows:
ART. 3. That, with intent to oppress and procure the conviction
of the prisoner, the evidence of John Taylor, a material
witness on behalf of the aforesaid Callender, was not permitted
by the said Samuel Chase to be given in, on pretence that the
said witness could not prove the truth of the whole of one of
the charges contained in the indictment, although the said
charge embraced more than one fact.
Those who pronounced guilty on this article, are:
Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,
Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay,
Moore, Smith of Maryland, Sumter, Worthington, and Wright--18.
Those who pronounced not guilty, are:
Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse,
Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith
of Ohio, Smith of Vermont, Stone, Tracy, and White--16.
The fourth article was read by the Secretary, as follows:
ART. 4. That the conduct of the said Samuel Chase was marked,
during the whole course of the said trial, by manifest
injustice, partiality, and intemperance; viz:
1. In compelling the prisoner’s counsel to reduce to writing,
and submit to the inspection of the Court, for their admission
or rejection, all questions which the said counsel meant to
propound to the above-named John Taylor, the witness:
2. In refusing to postpone the trial, although an affidavit was
regularly filed, stating the absence of material witnesses on
behalf of the accused; and although it was manifest, that, with
the utmost diligence, the attendance of such witnesses could
not have been procured at that term:
3. In the use of unusual, rude, and contemptuous expressions
towards the prisoner’s counsel; and in falsely insinuating that
they wished to excite the public fears and indignation, and to
produce that insubordination to law to which the conduct of the
judge did, at the same time, manifestly tend:
4. In repeated and vexatious interruptions of the said counsel,
on the part of the said judge, which at length induced them
to abandon their cause and their client, who was thereupon
convicted and condemned to fine and imprisonment:
5. In an indecent solicitude manifested by the said Samuel
Chase for the conviction of the accused, unbecoming even a
public prosecutor, but highly disgraceful to the character of a
judge, as it was subversive of justice.
Those who pronounced guilty on this article, are:
Messrs. Anderson, Breckenridge, Brown, Cocke, Condit, Ellery,
Franklin, Giles, Howland, Jackson, Logan, Maclay, Moore, Smith
of Maryland, Stone, Sumter, Worthington, and Wright--18.
Those who pronounced not guilty, are:
Messrs. Adams, Baldwin, Bayard, Bradley, Dayton, Gaillard,
Hillhouse, Mitchill, Olcott, Pickering, Plumer, Smith of New
York, Smith of Ohio, Smith of Vermont, Tracy, and White--16.
The fifth article was read by the Secretary, as follows:
ART. 5. And whereas it is provided by the act of Congress,
passed on the 24th day of September, 1789, entitled “An act to
establish the judicial courts of the United States,” that for
any crime or offence against the United States, the offender
may be arrested, imprisoned, or bailed, agreeably to the
usual mode of process in the State, where such offender may
be found: and whereas it is provided by the laws of Virginia,
that upon presentment by any grand jury of an offence not
capital, the Court shall order the clerk to issue a summons
against the person or persons offending, to appear and answer
such presentment at the next court; yet the said Samuel Chase
did, at the court aforesaid, award a capias against the body
of the said James Thompson Callender, indicted for an offence
not capital, whereupon the said Callender was arrested and
committed to close custody, contrary to law in that case made
and provided.
All the members pronounced not guilty on this article.
The sixth article was read by the Secretary, as follows:
ART. 6. And whereas it is provided by the 34th section of the
aforesaid act, entitled “An act to establish the judicial
courts of the United States,” that the laws of the several
States, except where the constitution, treaties, or statutes
of the United States shall otherwise require or provide, shall
be regarded as the rules of decision in trials at common law,
in the courts of the United States, in cases where they apply;
and whereas by the laws of Virginia it is provided, that in
cases not capital, the offender shall not be held to answer any
presentment of a grand jury until the court next succeeding
that during which such presentment shall have been made, yet
the said Samuel Chase, with intent to oppress and procure the
conviction of the said James Thompson Callender, did, at the
court aforesaid, rule and adjudge the said Callender to trial
during the term at which he, the said Callender, was presented
and indicted, contrary to law in that case made and provided.
Those who pronounced guilty on this article, are:
Messrs. Breckenridge, Cocke, Howland, and Maclay--4.
Those who pronounced not guilty, are:
Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown,
Condit, Dayton, Ellery, Franklin, Gaillard, Giles, Hillhouse,
Jackson, Logan, Mitchill, Moore, Olcott, Pickering, Plumer,
Smith of Maryland, Smith of New York, Smith of Ohio, Smith
of Vermont, Stone, Sumter, Tracy, White, Worthington, and
Wright--30.
The seventh article was read by the Secretary, as follows:
ART. 7. That at a circuit court of the United States, for the
district of Delaware, held at Newcastle, in the month of June,
one thousand eight hundred, whereat the said Samuel Chase
presided--the said Samuel Chase, disregarding the duties of his
office, did descend from the dignity of a judge and stoop to
the level of an informer, by refusing to discharge the grand
jury, although entreated by several of the said jury so to do,
and after the said grand jury had regularly declared, through
their foreman, that they had found no bills of indictment,
nor had any presentments to make, by observing to the said
grand jury, that he, the said Samuel Chase, understood
“that a highly seditious temper had manifested itself in
the State of Delaware, among a certain class of people,
particularly in Newcastle county, and more especially in the
town of Wilmington, where lived a most seditious printer,
unrestrained by any principle of virtue, and regardless
of social order--that the name of this printer was”--but
checking himself, as if sensible of the indecorum which he
was committing, added, “that it might be assuming too much to
mention the name of this person, but it becomes your duty,
gentlemen, to inquire diligently into this matter,” and that
with intention to procure the prosecution of the printer in
question, the said Samuel Chase did, moreover, authoritatively
enjoin on the District Attorney of the United States the
necessity of procuring a file of the papers to which he
alluded, (and which were understood to be those published under
the title of “Mirror of the Times and General Advertiser,”)
and by a strict examination of them to find some passage which
might furnish the groundwork of a prosecution against the
printer of the said paper; thereby degrading his high judicial
functions, and tending to impair the public confidence in, and
respect for, the tribunals of justice, so essential to the
general welfare.
Those who pronounced guilty on this article, are:
Messrs. Breckenridge, Cocke, Franklin, Howland, Jackson,
Maclay, Smith of Maryland, Stone, Sumter, and Wright--10.
Those who pronounced not guilty, are:
Messrs. Adams, Anderson, Baldwin, Bayard, Bradley, Brown,
Condit, Dayton, Ellery, Gaillard, Giles, Hillhouse, Logan,
Mitchill, Moore, Olcott, Pickering, Plumer, Smith of New
York, Smith of Ohio, Smith of Vermont, Tracy, White, and
Worthington--24.
The eighth article was read by the Secretary as follows:
ART. 8. And whereas mutual respect and confidence between the
Government of the United States and those of the individual
States, and between the people and those Governments,
respectively, are highly conducive to that public harmony,
without which there can be no public happiness, yet the said
Samuel Chase, disregarding the duties and dignity of his
judicial character, did, at a circuit court, for the district
of Maryland, held at Baltimore, in the month of May, one
thousand eight hundred and three, pervert his official right
and duty to address the grand jury then and there assembled,
on the matters coming within the province of the said jury,
for the purpose of delivering to the said grand jury an
intemperate and inflammatory political harangue, with intent
to excite the fears and resentment of the said grand jury, and
of the good people of Maryland, against their State government
and constitution--a conduct highly censurable in any, but
peculiarly indecent and unbecoming in a judge of the Supreme
Court of the United States; and, moreover, that the said
Samuel Chase, then and there, under pretence of exercising his
judicial right to address the said grand jury, as aforesaid,
did, in a manner highly unwarrantable, endeavor to excite
the odium of the said grand jury, and of the good people of
Maryland, against the Government of the United States, by
delivering opinions, which, even if the judicial authority were
competent to their expression, on a suitable occasion and in
a proper manner, were at that time, and as delivered by him,
highly indecent, extra-judicial, and tending to prostrate the
high judicial character with which he was invested, to the low
purpose of an electioneering partisan.
Those who pronounced guilty on this article, are:
Messrs. Anderson, Baldwin, Breckenridge, Brown, Cocke, Condit,
Ellery, Franklin, Giles, Howland, Jackson, Logan, Maclay,
Moore, Smith of Maryland, Stone, Sumter, Worthington, and
Wright--19.
Those who pronounced not guilty, are:
Messrs. Adams, Bayard, Bradley, Dayton, Gaillard, Hillhouse,
Mitchill, Olcott, Pickering, Plumer, Smith of New York, Smith
of Ohio, Smith of Vermont, Tracy, and White--15.
The PRESIDENT rose and said, on the first article, sixteen gentlemen
have pronounced guilty, and eighteen not guilty; on the second article,
ten have said guilty, and twenty-four not guilty; on the third article,
eighteen have said guilty, and sixteen not guilty; on the fourth article,
eighteen have said guilty, and sixteen not guilty; on the fifth article,
there is a unanimous vote of not guilty; on the sixth article, four have
said guilty, and thirty not guilty; on the seventh article, ten have said
guilty, and twenty-four not guilty; and on the eighth article, nineteen
have said guilty, and fifteen not guilty.
Hence, it appears that there is not a constitutional majority of votes
finding Samuel Chase, Esq., guilty, on any one article. It, therefore,
becomes my duty to declare that Samuel Chase, Esq., stands acquitted of
all the articles exhibited by the House of Representatives against him.
Whereupon the Court adjourned without day.
EIGHTH CONGRESS--SECOND SESSION.
PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.
MONDAY, November 5, 1804
This being the day appointed by law for the meeting of the present
Session, the following members of the House of Representatives appeared
and took their seats, to wit:
_From New Hampshire_--Silas Betton, Clifton Claggett, David
Hough, and Samuel Tenney.
_From Massachusetts_--Jacob Crowninshield, Thomas Dwight, Nahum
Mitchell, Ebenezer Seaver, William Stedman, Joseph B. Varnum,
and Lemuel Williams.
_From Rhode Island_--Nehemiah Knight and Joseph Stanton.
_From Connecticut_--John Davenport and John Cotton Smith.
_From Vermont_--William Chamberlin, Martin Chittenden, James
Elliot, and Gideon Olin.
_From New York_--Gaylord Griswold, Josiah Hasbrouck, Henry
W. Livingston, Andrew McCord, Samuel L. Mitchill, Beriah
Palmer, Erastus Root, Thomas Sammons, David Thomas, Philip Van
Cortlandt, Killian K. Van Rensselaer, and Daniel C. Verplanck.
_From New Jersey_--Adam Boyd, Ebenezer Elmer, James Sloan, and
Henry Southard.
_From Pennsylvania_--Isaac Anderson, David Bard, Joseph Clay,
Frederick Conrad, William Findlay, Joseph Heister, Michael
Leib, John Rea, Jacob Richards, John Smilie, John Stewart, and
John Whitehill.
_From Maryland_--John Archer, Wm. McCreery, Nicholas R. Moore,
and Thomas Plater.
_From Virginia_--Thomas Claiborne, John Dawson, John W. Eppes,
Thomas Griffin, David Holmes, John G. Jackson, Joseph Lewis,
jun., Anthony New, Thomas Newton, jun., John Randolph, Thomas
M. Randolph, John Smith, James Stephenson, and Philip R.
Thompson.
_From Kentucky_--George Michael Bedinger, John Boyle, and
Thomas Sanford.
_From North Carolina_--Willis Alston, jun., William Blackledge,
James Gillespie, James Holland, William Kennedy, Nathaniel
Macon, (Speaker,) Richard Stanford, and Joseph Winston.
_From Tennessee_--George W. Campbell, William Dickson, and John
Rhea.
_From South Carolina_--John B. Earle.
_From Georgia_--Peter Early and David Meriwether.
_From Ohio_--Jeremiah Morrow.
_Delegate from the Mississippi Territory_--William Lattimore.
Several new members, to wit: from Massachusetts, SIMON LARNED, returned
to serve in this House as a member for the said State, in the room of
TOMPSON J. SKINNER, who has resigned his seat; from New York, SAMUEL
RIKER, returned to serve as a member for the said State, in the room of
JOHN SMITH, appointed a Senator of the United States; and from Virginia,
CHRISTOPHER CLARK, returned to serve as a member for the said State, in
the room of JOHN TRIGG, deceased; appeared, produced their credentials,
and took their seats in the House; the oath to support the Constitution
of the United States being first administered to them by Mr. SPEAKER,
according to law.
And a quorum, consisting of a majority of the whole number, being present,
_Ordered_, That a message be sent to the Senate, to inform them that a
quorum of this House is assembled, and ready to proceed to business; and
that the Clerk of this House do go with the said message.
The following committees were appointed pursuant to the standing rules
and orders of the House, viz:
_Committee of Elections._--Mr. FINDLAY, Mr. VARNUM, Mr. LIVINGSTON, Mr.
KENNEDY, Mr. EPPES, Mr. CLAGGETT, and Mr. ELMER.
_Committee of Ways and Means._--Mr. JOHN RANDOLPH, Mr. JOSEPH CLAY, Mr.
GAYLORD GRISWOLD, Mr. BOYLE, Mr. DAVENPORT, Mr. NICHOLAS R. MOORE, and
Mr. MERIWETHER.
_Committee of Commerce and Manufactures._--Mr. SAMUEL L. MITCHILL, Mr.
CROWNINSHIELD, Mr. MCCREERY, Mr. LEIB, Mr. NEWTON, Mr. EARLY, and Mr.
CHITTENDEN.
_Committee of Claims._--Mr. JOHN COTTON SMITH, Mr. HOLMES, Mr. PLATER,
Mr. CHAMBERLIN, Mr. Bedinger, Mr. STANFORD, and Mr. STANTON.
_Committee of Revisal and Unfinished Business._--Mr. TENNEY, Mr. DICKSON,
and Mr. EARLE.
The SPEAKER laid before the House a letter from the Governor of the State
of Maryland, enclosing a certificate of the election of ROGER NELSON, to
serve in this House as a member for the said State, in the room of DANIEL
HEISTER, deceased; which was referred to the Committee of Elections.
TUESDAY, November 6.
Several other members, to wit: from Massachusetts, MANASSEH CUTLER; from
Connecticut, SAMUEL W. DANA and ROGER GRISWOLD; from New Jersey, JAMES
MOTT; from Pennsylvania, JOHN A. HANNA, JOHN B. C. LUCAS, and ISAAC VAN
HORNE; from Maryland, JOHN CAMPBELL; from Virginia, JOHN CLOPTON; and
from South Carolina, THOMAS LOWNDES, appeared, and took their seats in
the House.
Another new member, to wit: ROGER NELSON, from Maryland, returned to
serve in this House as a member for the said State, in the room of DANIEL
HEISTER, deceased, appeared, produced his credentials, was qualified, and
took his seat in the House.
Mr. J. RANDOLPH moved for the appointment of a committee on the part of
the House to join a committee of the Senate to wait on the PRESIDENT and
inform him that a quorum of both Houses is formed, and ready to receive
his communications.
Mr. DANA inquired if a quorum of the Senate was formed? That
circumstance, he thought, ought to be ascertained before the House
adopted the gentleman’s resolution.
Mr. RANDOLPH did not know whether or no the Senate had formed a quorum,
but he saw no objection on that account to proceeding with their own
business. He, however, had understood that the Senate would form a quorum
this day.
The resolution was carried, and Messrs. J. RANDOLPH and R. GRISWOLD
appointed the committee.
WEDNESDAY, November 7.
Several other members, to wit: from Maryland, JOSEPH H. NICHOLSON; from
Virginia, WALTER JONES; from South Carolina, THOMAS MOORE; and from
Georgia, JOSEPH BRYAN, appeared, and took their seats in the House.
Mr. JOHN RANDOLPH, from the joint committee appointed to wait on the
President of the United States, and inform him that a quorum of the
two Houses is assembled, reported that the committee had performed
that service, and that the President signified to them he would make a
communication to this House, in writing, to-morrow at twelve o’clock.
THURSDAY, November 8.
Several other members, to wit: from New Hampshire, SAMUEL HUNT; from
Massachusetts, SAMUEL TAGGART; from Connecticut, SIMEON BALDWIN and
CALVIN GODDARD; and from North Carolina, SAMUEL D. PURVIANCE, appeared,
and took their seats in the House.
A Message was received from the PRESIDENT OF THE UNITED STATES, by Mr.
BURWELL, his Secretary, as follows:
_Mr. Speaker_: I am directed to hand you a communication, in
writing, from the PRESIDENT to the two Houses of Congress.
The communication was read, and, together with the documents accompanying
the same, referred to the Committee of the whole House on the state
of the Union. [See Senate proceedings of this date, page 164, for the
Message.]
_Sword to Decatur._
Mr. J. CLAY moved the following resolution:
_Resolved_, That the President of the United States be
requested to present, in the name of Congress, to Captain
Stephen Decatur, a sword, of the value of ---- dollars, and
to each of the officers and crew of the United States ketch
Intrepid, ---- months’ pay, as a testimony of the high sense
entertained by Congress of the gallantry, good conduct, and
services, of Captain Decatur, the officers, and crew, of the
said ketch, in attacking and destroying a Tripolitan frigate,
of forty-four guns, late the United States frigate Philadelphia.
_Ordered_, That the said motion be referred to a Committee of the Whole
to-morrow.
FRIDAY, November 9.
Two other members, to wit: from Massachusetts, WILLIAM EUSTIS; and from
Pennsylvania, ROBERT BROWN, appeared, and took their seats in the House.
_Frigate Philadelphia._
Mr. J. CLAY’s motion relative to Captain Decatur and the officers and
crew of the ketch Intrepid, was taken up in Committee of the Whole.
On motion of Mr. CLAY, the resolution was altered, by striking out after
the word “sword,” the words “the value of ---- dollars,” and filling up
the other blank with the word “two,” thereby giving the officers and crew
two months’ pay.
Mr. C., with a view of showing the propriety of the measure, read
extracts of letters written by Commodore Preble and Lieutenant Decatur,
which had been obtained from the Secretary of the Navy; they contained an
account of the circumstances attending this honorable exploit, which have
heretofore been printed in the public newspapers.
The committee rose and reported the resolution as amended.
Mr. GRISWOLD presumed the object of this step was to pay a tribute of
respect to those brave men who had so gallantly achieved this glorious
and dangerous enterprise. He wished to do this in a manner the most
honorable and notorious, and perhaps the best course would be to
obtain from the Head of the Navy Department, a list of the names of
the officers and the number of the crew, together with a detail of the
circumstances attending the event. With this view, he moved to postpone
the consideration of the resolution reported by the Committee of the
Whole, till to-morrow, in order to introduce a resolution to this effect:
_Resolved_, That the Secretary of the Navy be directed to
communicate to this House the name of the officers and the
number of the men employed in the destruction of the frigate
Philadelphia in the harbor of Tripoli, together with a
statement of the circumstances attending that event.
The postponement was agreed to without opposition, and the resolution of
Mr. GRISWOLD was adopted, with a small variation, suggested by Mr. J.
RANDOLPH, and acquiesced in by the mover, to wit: “That the President of
the United States be requested to cause to be laid before this House,”
etc.
Mr. J. CLAY and Mr. T. M. RANDOLPH were appointed a committee to wait on
the PRESIDENT and communicate the request of the House.
MONDAY, November 12.
Several other members, to wit: from Massachusetts, PELEG WADSWORTH; from
New Jersey, WILLIAM HELMS; from Delaware, CÆSAR A. RODNEY; from Virginia,
MATTHEW CLAY; from North Carolina, MARMADUKE WILLIAMS and THOMAS WYNES;
and from South Carolina, LEVI CASEY and RICHARD WINN, appeared, and took
their seats in the House.
_British Treaty._
Mr. J. RANDOLPH informed the House that the Committee of Ways and
Means had received a communication from the Treasury Department,
stating that the appropriation of $50,000, for carrying into effect
the seventh article of the British Treaty, had not been sufficient to
discharge the second instalment upon all the awards made in pursuance
thereof, and suggesting the propriety of making, as early as possible, a
further appropriation for that object. The Secretary of State estimated
the amount unpaid at $60,000, and that, in order to prevent any
disappointment, it would be eligible to make the appropriation $70,000.
Mr. R. hereupon moved that the Committee of Ways and Means have leave to
report a bill on this subject. Leave being granted,
Mr. J. R. reported a bill accordingly, which was read a first and second
time, and referred to a Committee of the Whole to-morrow.
TUESDAY, November 13.
Two other members, to wit: from Massachusetts, RICHARD CUTTS; and from
South Carolina, WILLIAM BUTLER, appeared, and took their seats in the
House.
No quorum being present, the House adjourned.
WEDNESDAY, November 14.
Another member, to wit, PHANUEL BISHOP, from Massachusetts, appeared, and
took his seat in the House.
THURSDAY, November 15.
Two other members, to wit: from Massachusetts, SAMUEL THATCHER; and from
Pennsylvania, ANDREW GREGG, appeared, and took their seats in the House.
A Message was received from the PRESIDENT OF THE UNITED STATES, as
follows:
_To the House of Representatives of the United States_:
Agreeably to your resolution of the ninth instant, I now lay
before you a statement of the circumstances attending the
destruction of the frigate Philadelphia, with the names of the
officers and the number of men employed on the occasion; to
which I have to add, that Lieutenant Decatur was, thereupon,
advanced to be a Captain in the Navy of the United States.
TH. JEFFERSON.
NOV. 15, 1804.
The said Message and the papers referred to therein, were read, and
ordered to lie on the table.
MONDAY, November 19.
_Sword to Decatur._
The House proceeded to consider the resolution reported, on the ninth
instant, from the Committee of the whole House, to whom was referred a
motion relative “to Captain Stephen Decatur, the officers, and crew, of
the United States ketch Intrepid;” and the said resolution being twice
read, and amended at the Clerk’s table, was agreed to by the House, as
follows:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled_, That the
President of the United States be requested to present, in
the name of Congress, to Captain Stephen Decatur, a sword;
and to each of the officers and crew of the United States
ketch Intrepid, two months’ pay, as a testimony of the high
sense entertained by Congress of the gallantry, good conduct,
and services of Captain Decatur, the officers, and crew, of
the said ketch, in attacking, in the harbor of Tripoli, and
destroying a Tripolitan frigate of forty-four guns.
_Ordered_, That the said resolution be engrossed, and read the third time
to-day.
TUESDAY, November 20.
Another member, to wit, GEORGE TIBBITS, from New York, appeared, and took
his seat in the House.
WEDNESDAY, November 21.
_Louisiana Lead Mines._
The engrossed resolution authorizing the President to appoint an
agent, who shall be instructed to collect all the material information
respecting the actual condition, occupancy, and title of the lead mines
in Louisiana, was taken up on its third reading.
Mr. LUCAS entertained a doubt as to the propriety of this measure;
indeed, the gentleman from New York (Mr. MITCHILL) seemed to admit
that it was superfluous, for he had said that the President, under
proper authority, had already appointed agents to explore generally
the Territory of Louisiana; that they have been some time engaged in
that service at the Missouri, Arkansas, Red River, and about Detroit,
and indeed Major Lewis had been some time in St. Louis, a post in the
neighborhood of these very lead mines, and from his known enterprise and
minute inquiries, there was good reason for believing that the subject
which was the object of the proposed resolution, would be narrated in his
general report of discoveries. But in addition to this expectation, the
document accompanying the President’s Message sheds considerable light.
The information as to the condition of the lead mines, their number,
names, and value, were explained, and as he had heard no gentleman
suggest a doubt as to the accuracy of the narrative, he was inclined to
give it full credit, from the general character of the gentleman who
made the communication, and the particular knowledge he must necessarily
have acquired by a long residence in the country. From this view of the
subject he was compelled to acknowledge that he had altered his idea of
the resolution, and could not now vote in its favor.
Mr. MITCHILL had hoped that the gentleman from Pennsylvania, after the
explanation of yesterday, would consent to the resolution; he would now
add but a few explanatory words. The object of the resolution was simply
to appoint an agent to inquire into the occupancy and titles of the
present holders and claimants; this required a civilian versed in the
municipal laws of the nations who had heretofore held that territory;
not a natural historian, or mineralogist, not one who was acquainted
with the art of mining, or smelting and testing ores. Neither did Mr. M.
believe it would be necessary to send the agent to the mines themselves,
but to the place where the deeds and conveyances constituting the
title-papers of the proprietors, or pretended claimants, are recorded or
preserved. Whether these were at New Orleans, or what other place, he
did not know. As to the expense, it was not likely to exceed $1,000 or
$2,000, even if the agent were sent from this city; but he imagined if
the business could be as well conducted by the appointment of an agent
in Louisiana, the President would instruct the Governor how to act. It
might be seen too, from the words of the resolution, that it was a mere
temporary employment, not likely to be of longer duration than three or
four months, for the report is instructed to be made before the next
meeting of Congress. Mr. M. concluded, that if Mr. LUCAS would reconcile
himself to vote for the present motion upon this explanation, and
should he hereafter desire a more extensive examination into the actual
circumstances of the newly-acquired Territory, he might rely upon his
earnest co-operation.
Mr. L. observed in reply, that Louisiana had been held alternately by
three or four nations: each of which in sequence had granted titles
to more or less of the lands in question. An examination into those
titles would at this time excite a high degree of sensibility among the
inhabitants, who, he thought, ought in their youthful state to be treated
by Congress with tenderness and delicacy. The titles were various,
some derived from the Governors of the country, some from commanders
of posts. Many of the latter he believed might be considered by the
agent illegal; especially as he had learned that the commander of St.
Louis, in North Louisiana, held paramount authority over the subordinate
posts, and that without his approbation the lands so granted would not
be allowed; yet these persons held under such title, and by occupancy
and improvement consider themselves the _bona fide_ proprietors of the
lands. He feared that the inquiry intended by the resolution might create
great dissatisfaction, while a postponement for the present could do no
possible evil.
Mr. EARLY said, if Mr. L. had made a correct statement of the condition
in which the titles in that country really stood, and he had no reason
to doubt it, it would operate as the strongest reason on his mind to
pass the resolution: though it would be perceived that the agency to
be given on the present occasion extended no farther than to the lead
mines. The gentleman, Mr. L., had yesterday mistaken his friend, Mr.
MITCHILL’s object, supposing a general agency was intended to be raised.
He had mistaken him again to-day, by thinking the agent was to go into
the Territory of Louisiana to decide upon the titles he might have an
opportunity of examining. This was not the case. He was merely to inquire
into the actual condition of the lead mines, the occupancy and title,
for the information of Congress. We are not going to send a Board of
Commissioners, or a Judiciary Establishment, for the purpose of hearing
and determining upon the claims set up, but to procure for ourselves that
information which will enable the Government to decide, without their
instrumentality. If the gentleman (Mr. L.) views the subject in this
point of light, he will find it freed from his objection.
The question was now put, and the resolution passed, 74 members voting in
its favor.
THURSDAY, November 22.
Two other members, to wit: PETERSON GOODWYN and EDWIN GRAY, from
Virginia, appeared and took their seats in the House.
MONDAY, November 26.
_Preservation of Peace._
The House resolved itself into a Committee of the Whole on the bill for
the more effectual preservation of peace in the ports and harbors of the
United States, and in waters under their jurisdiction.
The first section authorizes the President and other proper officers to
call in the aid of the militia, regular troops, or armed vessels, to
execute civil process upon offenders who take refuge on board foreign
armed vessels.
On motion of Mr. NICHOLSON, any commanding officer refusing to obey a
requisition to this effect was subjected to a fine not exceeding five
thousand dollars.
_Remission of Duties._
Mr. RANDOLPH called for the order of the day on the report of the
Committee of Ways and Means respecting the remission of duties on
books imported for the use of colleges and seminaries of learning--the
resolution declaring it to be inexpedient to allow the same.
The House taking the subject into consideration--
Mr. J. RANDOLPH observed that the Constitution of the United States was
a grant of limited powers for general objects, which Congress had no
right to exceed, although they might think the powers too limited. This
position he considered as of primary importance. Its leading feature was
an abhorrence of exclusive privileges; it might be called the key to that
instrument; every thing which rose up in the shape of privilege, was
repressed in a peculiar manner, whether it related to orders or classes
of men. Whenever they have touched the doctrine of privilege, the framers
of that instrument, and the people of the United States adopting it, have
been careful that nothing should be got by inference, or construction;
the privileges of this House even have been precisely defined, and
nothing is left for its extension, whatever may be the wishes or
disposition of its members. The principle that this constitution is
but a limited grant of power occurs, if not directly, yet frequently
and effectually, so that it cannot be mistaken. On the privilege asked
for, to permit colleges and universities to import their books free of
impost, we refer to the eighth section of the first article, where it
is declared that Congress shall have power to levy and collect taxes,
duties, imposts and excises; but all duties, imposts and excises, shall
be uniform throughout the United States. The impost shall be uniform. It
is a lamentable fact, but nevertheless it is a fact, and cannot be too
much dwelt and insisted upon, nor too well known, that the ambiguity of
language gives our constitution that character which leaves it in the
power of civilians to say it means any thing or nothing. Whatever may
have been said on other points, I think in this instance the language is
so definite that it cannot possibly be mistaken. They shall be uniform,
that is to say, there shall be but one quantum, one mode of collecting,
and one manner; there shall not be two measures to mete with. If Congress
undertake to exempt one class of people from the payment of the impost,
they may exempt others also. If they begin with colleges and universities
for the advancement of learning, surely they may go on to exempt the
clergy and congregation for the advancement of religion; they may exempt
their own members. Indeed, it cannot be seen where they are to stop,
having once overleaped the constitutional barrier and entered on the wide
field of privilege. The duties must be uniform! Nobody can be exempted:
the President, if he chooses to import books, must pay the duty as well
as any private citizen. In this country we have no privileged class,
all must fare alike, every man must bend to the law, and the tax must be
uniform whether on land or books.
Mr. FINDLAY observed, that in addition to the constitutional objections
urged, he had others on the ground of expediency. The country colleges
and seminaries whose funds were small, had seldom or never an opportunity
of importing books; they were happy to receive them in the country
as donations, or by cheap editions; they would therefore receive no
corresponding accommodation, and yet they were more useful and their
use more universally felt than those called higher institutions, which
claim to be exempted from paying impost. There are only a few of the
well-endowed academies that can afford to procure foreign books, and when
they have them, their circulation is extremely confined; to say nothing
more, these reasons would engage me to support the resolution.
Mr. R. GRISWOLD.--The gentleman from Virginia (Mr. RANDOLPH) must have
misunderstood me when he supposed I objected to the report because the
committee had assigned no reason for the resolution: I mentioned the
circumstance merely to show that we ought not then to decide. With
respect to the constitutional objection he has set up, I acknowledge
it is new to me. Such an inquiry may be of great weight, but it does
not appear so to me. The paragraph quoted from the eighth section of
the first article, “that Congress shall have power to levy and collect
taxes,” has never struck me in the way it has that gentleman. The words
are, “levy and collect taxes, duties, imposts, and excises;” but it drops
the word _taxes_, it being settled in another part of the constitution,
and declares that duties, imposts, and excises shall be uniform. The
one speaks of direct taxes, the other of indirect--meaning that if an
indirect tax is laid, it shall be uniform. No one State is to have an
excise laid upon its inhabitants unless it extends to the citizens of
every other: one part is not to be excised and another excused. This has
always been the construction of that section of the constitution till
the present moment, and I think it the true one. It is now said that
Congress can only promote science and literature in one way. Why, have
not Congress made grants of lands to promote those objects in the Western
country? They have. I believe the power of Congress adequate to promote
literature in the way applied for; and it has been frequently the case
that, even after duties have been paid into the Treasury upon the uniform
system, yet individuals have had those duties returned. I do not want to
detain the House; but I am well persuaded that the constitution forms no
impediment, and the expediency must be apparent.
Mr. J. CLAY said he was one of the committee, and had agreed to the
report. Since reasons had been called for, he would in a few words assign
those which influenced him. The gentleman from Connecticut (Mr. DANA)
mistakes in thinking that a denial to exempt books from impost is a tax
on literary institutions, and therefore not uniform, as the constitution
requires all imposts should be; but he did not make his stand on the
ground of the constitution--he rested the question upon its expediency.
Giving literary institutions the privilege of exemption from imposts
would open a wide door for fraud: we should soon have them importing
books for sale duty free, rivalling the booksellers, who are subjected
to the payment of impost, and vending them in every street and avenue of
the nation. But why privilege colleges and universities to accommodate
the rich; for we may believe that the rich, and the children of the rich,
are the only persons who have access to these collections? The poor have
little leisure and less opportunity to improve the advantage which even
_neighborhood_ would give them to peruse works of the kind alluded to;
and sure it would be thought unjust to tax their pittance of imported
articles, in order to enable gentlemen to read the classic authors, or
the sublime and beautiful of the modern writers.
Mr. FINDLAY spoke of colleges, not of universities. We have three
in Pennsylvania--one of them, to be sure, has also the title of
university--but two of them have not funds to import books on their own
account. It is only rich institutions that have this advantage: the
poorer class of seminaries buy of booksellers, and pay them the impost as
well as their retail profit. Indeed, this remission of duties will rather
tend to create disgust than give satisfaction; and those seminaries which
have large collections of books would be induced to sell them at their
present price in order to procure new ones cheaper, as they have had to
pay the duty on the former, but would have none to pay upon those they
should hereafter import.
The question being called for, it was put on agreeing to the report of
the Committee of the Whole, that it is inexpedient to remit the duty on
books, and carried in the affirmative--seventy-nine members voting in the
affirmative.
The House then adjourned.
WEDNESDAY, November 28.
_Potomac River._
The House resolved itself into a Committee of the Whole on the bill
authorizing the corporation of Georgetown to make a dam or causeway from
Mason’s Island to the western shore of the river Potomac.
Mr. MACON (Speaker) moved to strike out the first section of the bill,
with a view of trying its merits.
Mr. J. RANDOLPH seconded the motion of his respectable friend, (the
Speaker.) The river Potomac was the joint property of the States of
Maryland and Virginia under compact between those States. This property,
at least on the part of Virginia, had never been relinquished. Congress,
in his conception, had no right to pass the law in question; but if they
had, there was another objection. The corporation of Georgetown were
empowered to lay a tax which would be unequal and oppressive, since the
property on which it was to be levied would not be equally benefited by
deepening the harbor, supposing that effect to be accomplished. He hoped
a prompt rejection of the bill would serve as a general notice to the
inhabitants of the District to desist from their daily and frivolous
applications to Congress, to the great obstruction of the public business.
Mr. SMILIE understood there was a rival interest between the towns of
Alexandria and Georgetown, and as this rivalry had been exhibited on many
former occasions, he deemed it proper, before they passed any bill for
the encouragement of either place, that the parties should be obliged
to publish their intentions some weeks before the application, that if
there were any objections to the measure contemplated, they might be
before the House at the same time. He stated this merely as a ground of
postponement, not saying whether he was in favor or against the measure.
Mr. GREGG thought the House bound to legislate for these people, until
they relinquished the claim to the jurisdiction, either by authorizing
them to legislate for themselves, or retroceding them to the States to
which they originally belonged. He approved of the idea of publishing, as
expressed by his colleague, (Mr. SMILIE,) which he considered absolutely
necessary. If Alexandria were opposed to the bill, it is probable they
would have sent in a memorial on the subject before this time; their not
having done so inclined him to believe that they were satisfied that the
measure should go into operation. He did not think the bill perfect, but
nevertheless he should not oppose its progress.
Mr. LEWIS said the landholders of Georgetown had very generally signed
the petition to Congress. And no person out of the walls of this House
gave it opposition. The people of Alexandria were content, and the owner
of the island and the west shore of the river was the person most likely
to be affected, yet he had given it his hearty assent. He was well
persuaded that no injury would be done to the navigation of the Eastern
branch, or to the port of Alexandria; if, therefore, they could render a
benefit to Georgetown, without injuring any other property, he trusted
the House would agree to the bill.
Mr. SLOAN felt interested in the result of this measure. The people here
have nobody to look to but Congress to make legislative provision for
their well-being; he therefore considered it a duty to attend to their
desires; but he wished the applicants to give notice of their intentions,
in order that any person conceiving himself likely to be aggrieved should
have an opportunity of being heard. This was the usual course pursued in
the State where he resided.
Mr. CLAIBORNE was by no means satisfied that the removal of the mud bank
would do no injury to the Eastern branch and to Alexandria.
Mr. NELSON said that on a question so important to the upper parts of
Maryland and Virginia, he could not refrain from stating some reasons in
favor of the measure, and against the motion of the Speaker, which was
intended to destroy the bill. It had been urged that the sediment which
now obstructed the navigation to Georgetown, if set afloat by increasing
the current and volume of water across it, would impede the navigation of
the Eastern branch or fill up the harbor of Alexandria. Those who would
take a view of the Eastern branch would be convinced it could make no
deposit there, it being intercepted or turned aside by the point which
projected into the Potomac; and as the water of the Eastern branch was
more rapid than the Potomac, the breadth of the latter being much wider
than the former, there certainly was no danger to be apprehended in that
quarter. As to Alexandria, it was not to be supposed that the solid
mass of sediment was to be taken off the bar at once and lodged in that
harbor; the probability was, it would remove gradually and deposit at the
eddy on each side of the river, while the union of the Eastern branch
with the Potomac would increase the celerity of the current and carry it
far below Alexandria.
The compact mentioned by the gentleman from Virginia (Mr. RANDOLPH)
between the States of Maryland and Virginia, he acknowledged to exist;
but as the measure contemplated the improvement of the navigation of the
Potomac, instead of obstructing it, the right of each State to the free
navigation thereof remained unimpaired. He imagined that the inhabitants
of Alexandria and the citizens of Virginia wished success to the measure.
He knew his constituents had it much at heart, knowing that a choice of
markets is a great accommodation to farmers; and if defeated, it would be
as much to their advantage to bring their produce to a shipping port at
once by land, as to use the canal recently constructed at such prodigious
expense, having afterwards to go with their produce to Alexandria by land.
Mr. SMILIE should not be against the bill, if upon full and fair inquiry
it was found proper to pass it. But he could not agree to be hurried
along without allowing time to acquire information. He therefore moved
that the committee rise and report progress.
Mr. MACON (Speaker) opposed the rising of the committee, because it
was leaving the business exactly where it stood, unless it was meant
to recommit it to a select committee for modification. But as he was
determined to vote against it in any and every shape, he was prepared to
decide now. As to the mode he had taken to come at his object, he should
only say it was a fair one, and such as had been the uniform practice of
the House since he had a seat in it.
The gentlemen in favor of this dam or causeway, say it will do no harm;
but where is the demonstration? On the other side, serious apprehensions
are entertained of its injurious effects upon the United States navy
yard in the Eastern branch, and its causing obstructions in the harbor
of Alexandria. He would assure the committee he was ready to promote the
welfare of any of the citizens; but it must in justice be done, without
injuring any other portion whatever.
At the last session, an application was made for a permanent bridge
across the Potomac, with a draw for the passage of vessels; the
petitioner urged the general utility of the measure to all persons
travelling North or South, but particularly the vast benefit accruing to
the inhabitants of the district, by affording a solid and secure means
of intercourse between its several parts. This measure was opposed by
the present petitioners, on the ground of the compact between Maryland
and Virginia securing the right of free navigation to the river, and
also alleging that their navigation to Georgetown would be impeded. The
argument which they applied then, now applies against them, and it ought,
in the minds of the same legislators, to apply with equal success.
Mr. FINDLAY was rather in favor of the bill, believing the mode proposed
would be successful in deepening the channel, which would certainly
improve the navigation to and from Georgetown, and in that object the
citizens of some of the western counties of Pennsylvania were materially
interested; several of their boatable creeks nearly interlocking
with those of the Potomac. He would, however, agree to the committee
rising, with a view to postpone the bill, until gentlemen acquired the
information they asked for.
Mr. GODDARD hoped the committee would rise, and the subject be postponed
until sufficient light was obtained to guide their votes to a proper
decision. He also hoped that no member might be considered as the friend
or the foe of the present bill, until he became such by an examination
into its merits or demerits. He narrated the course the business had
taken since its introduction into this House, and inferred that the same
deliberate mode ought to be pursued to the end. Whether the measure was
good or evil could only be determined in that way, and gentlemen ought
not to object to doing positive good, unless it was demonstrated that
positive evil would result to counterbalance the good that was intended.
He conceived the members ought to inquire for themselves on this point,
and legislate accordingly. He would on all occasions endeavor to promote
the interests of the district; and as it had no immediate representative
on the floor, he considered every representative bound to serve them,
while the seat of Government remained among them.
Mr. G. W. CAMPBELL would not declare whether he should vote for the final
passage of the bill or not. But he was disposed to take notice of the
applications made from time to time by the inhabitants of the district;
whether to redress grievances, or procure benefits. But he by no means
approved of the principles of legislation without representation. He
regretted that they were placed in this unfortunate situation; but he
should decide on the present question according to its merits; and if it
was found to be of great consequence to the petitioners, and not likely
to work an injury to others, he presumed the bill would finally pass.
But he wished the committee to rise, in order to give further time to
obtain information. It had been alleged that the friends of the measure
ought to demonstrate that the erection of a causeway would do no injury
to any one. This was not a fair position; it was requiring them to prove
a negative. The burden of proof should lie on those who oppose the
bill, and it was for them to demonstrate that injury would result. The
gentleman from Virginia (Mr. J. RANDOLPH) has stated that the boats from
the western country have a choice of passing by the western or eastern
channel to the market below Georgetown, and this, it is presumed, he
means they should be still entitled to under the compact between Maryland
and Virginia. Let us hear from those persons also, and then ascertain
whether they have any objection to the project on that account. This was
also an argument in favor of the rising of the committee, and perhaps it
may be added, that a little delay will enable the House so to modify the
bill as to render it less exceptionable than at present.
Mr. SOUTHARD had not considered this subject of much consequence in the
outset, but he found that its importance increased as it toiled along.
He thought this morning it would have occupied but a short portion of
their time; in that he found himself deceived; and he believed he was not
singular in these opinions. He suspected many other members were in the
same predicament. He therefore would vote for the committee’s rising.
That navigable waters are considered as highways, is a matter of great
notoriety; but he did not know that to deepen a channel, by contracting
its surface, was considered as obstructing the free navigation of a
river, nor could he conceive that the body of sediment meant to be
removed, would descend _en masse_ and deposit itself at the confluence
of the next stream it met. On the contrary, he imagined it would be
separated by the force of the current giving it action into millions of
particles, some of which would settle promiscuously on either side, while
a part would ultimately be deposited in the ocean.
The committee hereupon rose and reported progress, and asked leave to sit
again. On the question, Shall the committee have leave to sit again?
Mr. J. RANDOLPH requested that the act of cession by Virginia might
be read, by which it would clearly appear that she had not ceded, or
intended to cede to the United States any right acquired under her
compact with Maryland. [The act was read.]
It is plain from the preamble, said Mr. R., that the intention of the
State was to make a cession above the tide water; that the expected seat
of Government would be fixed in some place contiguous to the limits of
Maryland and Pennsylvania. It is not contended that the United States
were bound to select any particular spot. This circumstance is mentioned
only to show what was contemplated at the time by the Legislature of
Virginia. Her act of cession was more broad. It extended to any tract
of country not exceeding ten miles square, “to be located within the
limits of the State.” Over this she had relinquished to Congress her
jurisdiction as well of soil as of persons. But her limits did not extend
beyond high water mark on the western bank of the Potomac. Her right of
highway on the river was a natural right acknowledged and secured by
convention with Maryland. Her civil jurisdiction over its waters was a
conventional right, entirely derived from compact with that State, was a
jurisdiction not within her limits, and which the words of the act just
read could not embrace or convey.
Mr. DAWSON would vote against the committee having leave to sit again. He
was convinced that the objection made by his colleague (Mr. J. RANDOLPH)
was conclusive: the fact was, that neither Maryland nor Virginia had
ceded their joint rights to this river, nor could they do so, by their
separate acts; the terms of the compact requiring that any thing done
respecting the navigation of the Potomac, should be done by their joint
act. It was worthy of remark, that the petitioners for the causeway were
the identical persons who petitioned against the bridge as a violation of
the compact between the two States, and denied the authority of Congress
to legislate on the subject of the navigation of the Potomac. He thought
them right then, and he voted against the bridge. His opinion had not
changed with their opinions, and, therefore, he should vote against the
causeway now.
Mr. R. GRISWOLD said that from the vote just taken, he presumed that
the question of expediency had been settled. But it is now objected
that Congress have no exclusive jurisdiction over the Potomac. In reply
he would submit a few observations. By the constitution, Congress were
empowered to exercise exclusive jurisdiction over any place not exceeding
ten miles, which might be ceded by particular States. The States of
Maryland and Virginia had ceded this district to Congress, and the
cession had been accepted. But the gentleman from Virginia (Mr. RANDOLPH)
had said that Virginia did not cede the jurisdiction of the Potomac,
because she did not own it separately. To this he would answer, that the
river Potomac must have been under the jurisdiction of either Maryland
or Virginia, or both. And as both allowed Congress to accept of any part
of their territory not exceeding ten miles square, and Congress had
chosen to accept of part from one and part from the other, he presumed
the jurisdiction of the Potomac, let it have been held by either of the
States, or jointly, must have passed to the United States. He was of
opinion, that if Congress had no jurisdiction over the Potomac, they had
none over the district. The constitution provides only for the cession
of one district of country not exceeding ten miles square. The act of
Congress, made in pursuance of the constitution, had also provided for
the laying out one district. If the arguments of the gentleman from
Virginia were correct, and Congress had no jurisdiction over the Potomac,
the Commissioners and the then President of the United States, under
whose direction the district was laid off, had been mistaken, and had
taken two districts of territory instead of one. This being the case,
Congress had no jurisdiction in the district, because it not being
laid off conformably to the constitution and the law of Congress, the
acceptance by Congress was absolutely void. If this was correct, there
was an absolute necessity for giving leave to the committee to sit again,
for the purpose of deliberating whether Congress had jurisdiction or not.
If they had not, and were legislating for the people of the district
without authority, the sooner they put an end to such an assumption of
power, the better.
Mr. J. RANDOLPH declared that the opinion which he had just given was the
result of his most deliberate judgment. To what it might lead he should
not at that time undertake to determine; but when that question should
come before the House he was not sure that he should deny the corollary
of the gentleman from Connecticut, (Mr. R. GRISWOLD,) at least as far as
related to the testimony on the other side of the river. The question,
however, then was, whether Congress possessed exclusive jurisdiction
over the Potomac. How could they acquire it? From Maryland? It was more
than she had to give. At farthest she could only grant her own qualified
right. Had they obtained it from Virginia? Not at all. She had granted
a jurisdiction exclusively her own, over a tract of country within
her limits. And could any man pretend to say that this was a grant of
her concurrent jurisdiction over the Potomac, confessedly without her
limits? She had, to use the expression, issued her warrant to Congress,
to be located somewhere within the State, and, under this pretext, her
property out of the State was about to be usurped. Suppose the gentleman
from Connecticut were to convey by deed his exclusive property, by
certain metes and bounds, would his joint interest in other property
not contained within those bounds pass by such a deed? Surely not. To a
person setting up a claim to such property he would probably say, produce
the evidence of your title; and in like manner Mr. R. demanded to be
shown the conveyance by which Virginia had relinquished her concurrent
jurisdiction over the Potomac? And in answer to this, gentlemen refer to
a conveyance relinquishing something else in nowise connected with it,
and tell us we always believed that we had a grant for this jurisdiction;
we shall be grievously disappointed if we have not; it will be a great
inconvenience to us to do without it, and, therefore, we must have it.
And Virginia is to be forcibly dispossessed of her right, to suit the
convenience of Congress.
Mr. NELSON said, it was with diffidence he again troubled the House
after the lengthy discussion which had taken place. But doubts having
been originated as to the authority of Congress to pass the bill in
question, he felt compelled to remove those doubts, as far as lay in
his power. As the House had decided the expediency of the measure by
a large majority, if upon an investigation it should be demonstrated
that Congress possessed ample power to pass the bill, he trusted the
same majority would still be found in favor of it. He would proceed to
examine the power which Congress possessed to pass the bill, and he
trusted that he should be able to satisfy a majority of the House, that
they had sufficient power. Previous to the compact between Virginia and
Maryland, which had been so much talked of, Maryland claimed the sole
jurisdiction of the Potomac river, and Virginia claimed Cape Henry and
Cape Charles, also the jurisdiction of the Pocomoke as her property. In
order to prevent any duties from being imposed upon their vessels at
either of those places, the two States entered into a compact by which
Maryland agreed that the navigation of the Potomac should be free to the
people of Virginia, and Virginia contracted not to impose duties on the
vessels of Maryland coming by Cape Henry, or navigating the Pocomoke.
By this compact, the Potomac became the joint property of Maryland and
Virginia as to the free navigation, but all the islands were under the
jurisdiction of Maryland. This being the situation, each of these States,
by a law, ceded to Congress any part of their territory not exceeding ten
miles square, which they might choose to accept. Congress chose to accept
of part from one and part from the other; and, among the rest, this joint
property the river Potomac. There was no exception made in the act of
cession as to the water courses, and it would be needless to inform the
members that a grant of land necessarily carried with it a grant of the
waters thereon, unless an exception was made.
Mr. J. RANDOLPH.--The gentleman asks in the body of what county is the
river Potomac passing through the District of Columbia? Will he take it
for an answer that its jurisdiction is within the bodies of the same
counties it was in before the acceptance of the territory on each side?
In addition to the observations made on passing joint property with
exclusive property, suppose England and France to hold Malta in joint
possession, and that they cede to Germany, for her acquiescence in that
measure, some of the exclusive property held by each within the German
empire, will they say that their joint property in Malta passed by the
treaty?
Mr. CLARK was unwilling to trouble the House at that late hour with
any remarks, and would have entirely forborne, was not the question on
which we were about to decide, and which had become extremely important,
susceptible of a position which it had not assumed. It had been stated,
and generally agreed to, and he supposed was correct, that the State of
Maryland, previous to her compact with Virginia, rightfully claimed the
whole river Potomac to the high-water mark on the western bank. Virginia
owned the Capes. This collision of interest produced, in the year 1786,
an adjustment of their interfering interests, and it was expressly
stipulated that the river Potomac should remain a highway, free for the
navigation of each State. In the year 1799, the Legislature of Virginia
passed a law making a cession to the United States of a territory ten
miles square, or any less quantity that should be accepted for the seat
of the General Government, to be located and laid off within her limits;
thus by the terms of her cession confining it to her territory. Maryland,
nearly at the same period, made a similar cession. Out of these two
cessions is the present Columbian Territory made. It is contended by
the gentleman from Maryland, (Mr. NELSON,) that the two States uniting
in the cession makes the grant complete, and the right in the United
States predominant and exclusive. He acknowledges, at the same time,
this correct principle that they could grant no greater right than they
possessed. This doctrine I hold incontrovertible, that the alienee
can have no greater or better title than the alienor, otherwise the
derivative would be superior to the original title, a principle not to be
admitted.
Let it be distinctly recollected that, prior to the cession, Virginia had
purchased a right out of the soil of her sister State, distinct from the
land--an incorporeal hereditament, a franchise which she had the right of
exercising, unconnected with the use of the soil--so that, while Maryland
owned the land, Virginia owned the right of way. She never passed this
right by the terms of her cession or by any other act. Maryland could
not, having already parted from it. No strength of argument can be
derived from the terms of the constitution; for, if Virginia never parted
with her right, the United States could never have acquired it. I trust
I have shown that Virginia purchased a right in the navigation of the
Potomac, which she never parted from, and, of course, retains to this
moment. We, therefore, cannot constitutionally legislate on this subject.
Let it not be said that the object is improvement and not obstruction.
Is not building the wall from Mason’s Island to the Virginia shore an
obstruction, and the improvement at best problematical? But, this is
begging the question. On a fair admission of my construction, I contend,
and have endeavored to prove, that we possessing no jurisdiction over
the river, it cannot be touched by any legislative act of ours in any
point whatever. For, if it be touched in one way, it may be in another,
and may finally end in whatever arrangement Congress may think expedient
to make.
Mr. JACKSON did not stop to inquire whether it was proper for Congress to
retain the jurisdiction over this district, but he was willing to remove
a grievance which the people complained of and required to be done.
He was not one of those who was disposed to guard the people against
their worst enemies, themselves, as he did not believe the doctrine to
be true. The objection that Virginia and Maryland had only ceded their
exclusive property, and not the joint property of the free navigation of
the Potomac, might, perhaps, be extended further than gentlemen wished,
or were aware of. By the Treaty of Paris, France had ceded Louisiana in
full sovereignty to the United States, but expressly reserved the right
of free navigation of the Mississippi; if, then, the United States were
disposed to shorten the navigation by cutting through the bend of that
river, or in any other way improve the same, will it be necessary for the
United States to consult and obtain the assent of France to the measure
before they ventured to put it in execution?
Mr. NICHOLSON had but few observations to make upon the question before
the House. His opinion was the same as at the last session, when a
petition was presented for the erection of a bridge. He then thought
that the erection of a bridge over the Potomac would tend much to the
improvement of the place. He thought so still. But he then thought that
Congress had no right to interfere in the least with the free navigation
of the Potomac, and, of course, was opposed to the bridge. The same
reason operated, in his mind, against the bill now in question. Neither
of the States of Maryland or Virginia could have passed such a law
previous to the cession of the district to Congress. The question to
be determined, then, was “whether the jurisdiction of the Potomac was
ceded to Congress.” If this should be answered in the negative by the
committee, all questions as to the expediency of the measure would be
at an end. Previous to the compact between Virginia and Maryland, the
latter claimed the river Potomac as its exclusive property. By that
compact it was declared that the navigation of the said river should be
free. Virginia, therefore, acquired a kind of property in the river,
inasmuch as she acquired the right to the free navigation thereof. The
question, then, to be inquired into, was, Had Virginia parted with this
right? He conceived she had not. By the act authorizing the cession of
ten miles square or less to the United States, this could not have been
done; Virginia had no power to make the cession of the Potomac, because
she had not the jurisdiction over it, and could not grant more than she
possessed. After this grant by Virginia, the State of Maryland granted
to Congress a portion of territory not exceeding ten miles square for
the seat of Government. Had Maryland the sole property in the river, it
could have passed in this grant, provided Congress accepted that part
of her territory. But she had not this sole property, because the State
of Virginia had a right by compact to the free navigation thereof. How,
then, had the United States acquired the jurisdiction over the Potomac?
Would it be contended that they had acquired it from Maryland? This did
not appear from the act of cession. Had they acquired it from Virginia?
That could not be, because Virginia had no power to make such a grant.
So long as he had the honor of a seat in the House, he would hold up his
hands against any measure like the present, which would go to affect the
rights of any of the States. If Congress had a right to interfere in the
least with the free navigation of the Potomac, they had a right to stop
it altogether. He conceived they had no right to pass any law on the
subject; and, believing so, he would certainly vote against the committee
having leave to sit again.
On motion the committee rose and the House adjourned.
THURSDAY, November 29.
_Recession of the District of Columbia._
On a motion made and seconded that the House do come to the following
resolutions:
_Resolved_, That it is expedient for Congress to recede to
the State of Virginia the jurisdiction of that part of the
Territory of Columbia which was ceded to the United States
by the said State of Virginia, by an act passed the third
day of December, in the year one thousand seven hundred and
eighty-nine, entitled, “An act for the cession of ten miles
square, or any lesser quantity of territory within this State,
to the United States in Congress assembled, for the permanent
seat of the General Government;” provided the said State of
Virginia shall agree thereto.
_Resolved_, That it is expedient for Congress to recede
to the State of Maryland the jurisdiction of that part of
the Territory of Columbia within the limits of the City of
Washington, which was ceded to the United States by the
said State of Maryland, by an act passed on the nineteenth
day of December, in the year one thousand seven hundred and
ninety-one, entitled, “An act concerning the Territory of
Columbia and the City of Washington;” provided the said State
of Maryland shall consent and agree thereto:
_Ordered_, That the said motion be referred to a Committee of the whole
House on Wednesday next.
THURSDAY, December 6.
The SPEAKER laid before the House a letter from the Governor of the State
of Virginia, enclosing a return of the election of ALEXANDER WILSON, to
serve in this House, as a Representative for the said State, in the place
of ANDREW MOORE, appointed a Senator of the United States; which was
referred to the Committee of Elections.
FRIDAY, December 7.
_Post Roads._
Mr. JACKSON, from the committee appointed on the sixteenth ultimo,
presented a bill making provision for the application of the money
heretofore appropriated to the laying out and making public roads
leading, from the navigable waters emptying into the Atlantic, to the
Ohio river; which was read twice and committed to a Committee of the
Whole on Monday next.
On a motion made and seconded, that the House do come to the following
resolution:
_Resolved_, That a post road ought to be established from
Knoxville, in the State of Tennessee, by the most direct and
convenient route that the nature of the ground over which it is
to pass will admit, to the settlements on the Tombigbee river,
in the Mississippi Territory, and from thence to New Orleans;
and that a post road ought also to be established from ---- in
Georgia, to the said settlement on the Tombigbee, to intersect
the former road at the most convenient point between Knoxville
and the Tombigbee.
_Ordered_, That the said motion be referred to a Committee of the whole
House on Monday next.
_Duty on Salt._
Mr. THOMAS said, he rose with a view to propose an inquiry relative to
the duty on salt. On this article a duty of six cents per bushel was
first laid, in the year 1790 it was raised to twelve cents, and in the
year 1797 eight cents more were added, making the duty twenty cents per
bushel of 56 lbs.; at which rate it now stands. But, as every measured
bushel of good strong salt which is imported into this country will weigh
80 or 90 lbs., this is in reality a duty of 30 cents per bushel.
Three years ago, when the repeal of the stamp act, excise, and other
internal tax laws, were before Congress, an attempt was made to reduce
the duty on salt, and retain a part of that system.
At that time, although he was conscious the duty on this article of real
necessary consumption was too high, and fell extremely heavy on the
agricultural part of the community, particularly those living back from
the seaboard, who were obliged to use large quantities of it, for their
black cattle and other beasts of pasture, notwithstanding the increased
price at which it came to them, in consequence of the transportation, and
the profits charged on the amount of duty as well as original cost by the
several merchants or traders through whose hands it passed, yet he did
believe it better to allow this duty to remain as it was a while longer,
rather than not be enabled to abolish that expensive, inconvenient and
anti-republican system of internal taxation.
And should it now be found, on due inquiry, that a reduction of the duty
on this article, at this time, would be incompatible with the great
object of paying off the national debt and meeting the other exigencies
of Government, for his part he would not urge it; but he was persuaded
this was not the case--he believed our finances are amply sufficient to
authorize the measure.
On examining the report of the Secretary of the Treasury he found,
that besides meeting all the calls of Government, including the sum
appropriated annually towards the reduction of the public debt, there was
a surplus of $4,882,225 in the Treasury, and although there are several
payments to be made out of this sum, there will still be a large balance
remaining.
It also appears, from a comparative view of the bonded duties of the
present with former years, that there will be an increase of revenue
coming into the Treasury the ensuing year, and he believed there was no
reasonable probability of any new causes for expenditure.
This being the case, he flattered himself it would not be deemed
unseasonable or improper to propose a reduction of the duty, on this
article of necessary consumption, at this time.
With this object, however, said Mr. THOMAS, I wish to couple another
which I consider of equal importance, as it respects the reputation of
our beef, pork, fish, and butter, put up for exportation, as well as the
health of our seaport towns, and seamen employed on foreign voyages.
He said, by the Treasury accounts it appears that the aggregate amount
of salt imported into the United States during the year, ending the 30th
September last, was 3,858,195 bushels of 56 lbs. each, of this about
one-fourth part, or 868,355 were imported in foreign vessels. All this
salt was brought from foreign places, and no part of the salt prepared
from the briny waters near the Onondaga, in New York, the various springs
in the Western States, and the sea water of Cape Cod, Portsmouth, &c., is
taken into this calculation.
Of this salt some parts came from the Swedish, Danish, and Dutch West
Indies--other parts were imported from the British West Indies, and
other British colonies, from the French West Indies, from Spain, from
Teneriffe, and the other Canaries, and the Spanish West Indies; parcels
of the same salt were likewise brought from Portugal, Madeira, Cape de
Verd Islands, and Italy, and about 20,000 bushels of a similar kind has
heretofore annually been brought from Louisiana, which is now a part of
the United States.
But notwithstanding all this trade in salt, to so many parts of the
earth, the commerce in that article between the United States and Great
Britain is very extensive and important. During the year he before
mentioned, the proportion of imported salt which was furnished by England
alone, and of the manufacture of that country, amounted to 1,271,537
bushels of 56 lbs. So that it is evident at least one-third of the salt
consumed in our country is exported from that part of Great Britain
called England, and chiefly from those countries of which Liverpool is
the mart.
This salt, as he understood, was prepared by the process of boiling the
brine of the rock salt from Cheshire, and the water of the sea; and on
account of the great plenty and cheapness of coal in Lancashire, there
being also, as he believed, no export duty laid on it, this salt was
produced in abundance and sold on very low terms; it is employed as
ballast for British ships coming into our ports, and when arrived is sure
to sell and pay the freight and frequently afford a profit; our own ships
also very commonly take it in for ballast, and often as part of the cargo.
This traffic would be perfectly fair and convenient if English salt was
of a strength and quality fit to preserve animal flesh for provisions.
But he was clearly of opinion, from his own knowledge, this was not the
fact, and he had lately observed a discussion on this subject in the
British Parliament which confirmed that opinion.
The British Government long ago made a distinction between English salt
and foreign salt on their importation into Ireland. To encourage the
introduction of salt from the Bay of Biscay and the Portuguese dominions,
they permitted it to be imported into that kingdom at the rate of 84 lbs.
the bushel, while Liverpool salt was charged with the same duty of two
shillings on the bushel of 56 lbs. The reason of this distinction was
undoubtedly wise and cogent; experience had proved that British salt, as
brought to the market, was destitute of that purity and strength which
was necessary to preserve animal flesh from taint and corruption, and fit
for human food in hot climates and on long voyages.
The trade of Ireland in beef, pork and butter, was of great importance,
not only to that country itself, but to the whole navy and army of
Britain. To keep up the character and wholesomeness of their provisions
was a matter of immense national importance, and this could only be done
by attention to have it preserved with salt of purity and strength.
Experience had proved that the salt formed by crystallization in the open
sunshine on the western shores and islands of Southern Europe, was vastly
better than that produced by artificial concretion, in a boiling heat
over a fire in the North. And the Government had with prudent discernment
favored the introduction of Bay salt into Ireland, by permitting 84 lbs.
to be imported for the same duty that was paid on the introduction of 56
lbs. of Liverpool salt.
The people of Liverpool have lately expressed uneasiness at this
partiality, and an attempt has been made in Parliament, so to equalize
the duty, as to give to both Bay and English salt a fair competition
in the Irish market. This, however, was repelled by the Irish members,
with manly discernment and spirit, on the ground that Bay salt was of a
stronger quality, less easy to dissolve, and indispensable to the salters
of meats; that English or Liverpool salt would not answer for this
extensive and important branch of business; that the discrimination in
favor of Bay salt was politic and proper, especially connected with the
provision trade and the health of the fleets and armies.
It is my wish, said Mr. T., that such a distinction should be made on
the introduction of English salt into the United States, as has been
made by the British laws themselves, on its importation into Ireland.
There certainly exists the same causes for it. Like Ireland, our country
abounds in provisions--beef, pork, fish and butter, are great and staple
articles of export; but their quality is very far inferior to the
provisions of Ireland. The putrefaction of beef, pork and fish, to a very
serious extent, has often occurred; the loss of the property thereby was
great, and the reputation of our provisions materially affected. But that
was not the greatest evil; there is no doubt but that the exhalation from
tainted and corrupted meats and fish, in our towns as well as on board
our vessels, poison the atmosphere and excite malignant fevers and other
diseases.
His object was to retrieve and establish the reputation of our salted
provisions in foreign markets--to prevent the loss of property by those
who put up provisions for exportation, and also to prevent the evils
resulting to our citizens and seamen from tainted and spoiling meats
and fish. With this view of the subject he should propose, in the first
place, an inquiry into the expediency of reducing the duty on salt
generally; and, in the second, the propriety of making a distinction, so
as to encourage the importation of strong and pure salt, in preference to
the weak and impure salt manufactured in England.
He, therefore, moved the following resolution:
_Resolved_, That the Committee of Ways and Means be instructed
to inquire into the expediency of reducing the duty on salt,
and also into the propriety of making a distinction in the
duty, so as to encourage the importations of salt from the
dominions of Denmark, Sweden, the United Netherlands, Spain,
France, Portugal, and the British West Indies, in preference to
any other place or places; and that they report thereon by bill
or otherwise.
Mr. J. RANDOLPH said, that the resolution which the gentleman from New
York had submitted, and in relation to which he had favored the House
with such copious details, embraced two objects: the reduction of the
duty on salt, generally, and the encouragement of the importation of a
particular description of that article. The last subject belonging to a
class which was consigned to the Committee of Commerce and Manufactures,
he should confine himself to the first branch of the resolution; nor
should he have troubled the House at all were not the motion of the
gentleman from New York calculated to excite an expectation, which he
wished to repress, because he feared it could not be gratified. It was
not to oppose inquiry, but to apprise the mover and the public that the
result was likely to prove unpropitious to his wishes, that he had
risen. The country on which the salt duty fell with peculiar force was
that middle region, near enough to the seaboard to be supplied altogether
by importation, but too remote to have its consumption diminished by
vicinage to the sea. Those whose stock had access to salt water felt
the duty but partially; those whose situation obliged them to use salt
of home manufacture only, not at all. As an inhabitant of that district
of country by which the duty was principally paid, and as a friend to
agriculture, he had at an early period of the session, in conjunction
with his friend the Speaker, turned his attention to the practicability
of reducing the duty on salt, and you well know, sir, (said Mr. R.)
that the result of our inquiry satisfied us that this desirable object
was not at present attainable. He mentioned this to show that other
members felt an interest in this subject, as well as the gentleman
from New York, although they had not brought it before the House. The
Treasury statements on which that gentleman relied for the support of his
position, that we can dispense with a portion of our existing revenue,
establish the opposite opinion, beyond controversy.
MONDAY, December 10.
Two other members, to wit: MATTHEW WALTON, from Kentucky, and NATHANIEL
ALEXANDER, from North Carolina, appeared, and took their seats in the
House.
TUESDAY, December 11.
_Recession of District of Columbia._
The SPEAKER laid before the House a letter addressed to him from George
Washington Parke Custis, chairman of a meeting of the inhabitants of
the county of Alexandria, in the District of Columbia, enclosing sundry
resolutions of the said inhabitants, expressive of their disapprobation
of so much of a motion now depending before the House, as relates to a
recession of jurisdiction to the State of Virginia, of that part of the
District of Columbia which is contained in the county of Alexandria,
aforesaid.--Referred.
_Potomac River._
The House again resolved itself into a Committee of the Whole on the bill
authorizing the Corporation of Georgetown to make a dam or causeway from
Mason’s Island to the western shore of the river Potomac.
Mr. MACON gave it as his opinion that it would be improper at this time
to take up the subject, as there was a motion on the table to recede the
territory of the district back to the jurisdiction of the States out of
which it had been carved. If it is intended to recede the territory,
it would certainly be better to recede with as few encumbrances or
alterations as possible; indeed, the striking propriety of the business
taking the course he had just mentioned, had led him to expect that the
present bill would not be again agitated until the question of recession
had been investigated and decided. He would therefore move that the
committee rise and report progress.
Mr. SMILIE voted against going into a Committee of the Whole, on
the ground mentioned by the Speaker. If it be the intention of the
Legislature to recede this territory, there was certainly no necessity
of discussing the propriety of erecting a causeway; if it be not the
intention, when this is manifest it will be time enough to consider
the bill before them. From what he had observed on the part of
the inhabitants of the District of Columbia, there seemed to be a
disposition, if not a determination, to give Congress as much trouble
in legislating for them as they had for all the rest of the Union.
During the present session, this single ten miles square had occupied as
much of the time of the House as the whole of the United States, whose
general and important business was daily caused to be suspended for the
local concerns of this place. From observing this to be the settled
course of proceeding, he was convinced that Congress must do one of two
things, either recede them to their respective States, or put them in a
situation capable of managing their own affairs, in their own way. The
daily pay of the members amounted to a considerable sum, and the length
of time consumed on every trifling application for want of some member
able to explain the true situation of the district, occasioned by its
unrepresented state on this floor, were evils much to be lamented, if
they could not be remedied. He thought members could hardly justify the
waste of time, intended to be devoted to the public, whatever they might
think of the expense it occasioned. He hoped the committee would agree to
rise.
Mr. LEWIS did not think it fair to anticipate the opinion of the House on
the subject of recession, which he considered would be the effect of the
committee’s rising. If, however, the committee shall determine that they
would not, at this time, discuss the present bill, he had no objection to
enter on the consideration of the other subject.
Mr. NELSON thought this the proper time to discuss this question, even
in preference to that of recession. It appears from the petition of the
inhabitants of Georgetown, that the channel of the river, on which the
salvation of that town depends, is filling up daily; that the mass of mud
would soon increase to such a degree as totally to ruin the navigation
to that port. If even it should be agreed by Congress to recede the
territory to the States of Virginia and Maryland--which he wished and
hoped in God would not be the case--it would be late in the session, and
in all probability, at a time when neither of those State Legislatures
will be in session. Supposing both States were willing to accept the
recession, which he believed would not be found to be the case, the
petitioners could not apply to the Virginia Legislature until next
December, as their session began in that month, nor to Maryland until
next November. A twelvemonth’s delay might defeat the object altogether,
for the petitioners assert that it requires immediate exertions to
prevent the channel filling up altogether.
Mr. SLOAN reminded the committee of an old saying: “The time present only
is in our power, the future we know not of.” The time present, then,
is the time to redress the grievances of the suffering part of this
community, and as the citizens of Georgetown were really embarrassed, and
their apprehensions excited of greater danger, he hoped the committee
would proceed with the business.
Mr. STANFORD seldom troubled the House with any motion; but the one
alluded to by his colleague, (Mr. SPEAKER,) he had brought forward from
a sense of duty. The reiterated applications of the inhabitants of this
district for legislative provisions, he had always listened to with
attention, and he had no objection to proceeding in the discussion of the
present bill, convinced that it would only serve to show the necessity
of receding the territory. From all that had hitherto been done, it was
apparent that they could not attempt to accommodate one part of the
district without drawing forth petitions against the same from another
part. Counter-petitions were constantly coming in. He was willing to hear
every thing, but he did not believe the House could agree to any thing,
and it was not to be wondered at when the inhabitants could not agree
among themselves; or, if the House agreed at this time relative to the
objects of the bridge company and the causeway petitioners, it would be,
he suspected, to do nothing in either case. All this tended to evince the
propriety of adopting the resolution he had laid on the table to recede
the territory to the States of Virginia and Maryland, who would then have
competent powers to gratify both parties, if they deemed it expedient, of
which he was convinced they were better judges than this, or any future
Congress was ever likely to be.
The question on the committee rising was taken, and lost--only
forty-three members voting in the affirmative.
Mr. MACON then proposed to amend the bill in such a way as to provide for
regulating the ferries that might be established across the eastern part
of the stream to the causeway, and applying the fund arising from the
same for the purpose of keeping the causeway in repair.
Mr. LEWIS did not consider it useful to travel over the ground assumed on
a former occasion, but would confine himself to state to the committee
some information he had acquired since, in respect to the damage the
Eastern Branch or the port of Alexandria was likely to sustain, as had
been alleged. Before the year 1784, the channel on the western side was
so shallow that vessels only of very ordinary burden could pass, while
on the Maryland side vessels of great draught of water could easily pass
up to Georgetown. The uncommon hard winter of 1783-’4 was followed
in the spring by the greatest torrents ever known in the Potomac. The
bodies of ice were of immense magnitude, and many of them lodged upon the
island, and under the rocks of its bed, prizing with a force beyond all
credibility: it tore the rocks asunder and pressed them over into the new
channel, occasioning a rise of thirty or forty feet on the Georgetown
shore. On the Virginia side the torrent also forced itself and deepened
that channel, while it left a vast quantity of mud, rocks, and sand, in
the eastern channel, which has been constantly accumulating since that
period. The situation of the present bar is at the meeting of the two
arms of the river, below the island, and does not permit the passage of
vessels over it drawing more than twelve feet water. The consequence of
this alteration in the bed of the river below the island has been to
narrow the mouth of the Eastern Branch, but it had no effect upon the
harbor of Alexandria. This may serve to explain what may be the effect of
opening the old channel in the way proposed: it may operate to widen the
mouth of the Eastern Branch harbor, but it cannot injure Alexandria.
Mr. CLARK.--When this bill was under consideration, some days past, I
endeavored to show (and hope with satisfaction) that Congress had not the
power of legislating on this subject. The ground I then assumed was, that
Virginia had, by contract with the State of Maryland, before the cession
to the United States, acquired the right of highway on the river Potomac,
which she has never granted. It is now unnecessary to inquire into the
reasons of this policy; it is sufficient for our present purpose to say
it is the fact.
In retracing this subject, I find my arguments very much strengthened by
examining the Articles of Agreement between the States of Maryland and
Virginia, and this circumstance is the only inducement for my troubling
the committee again. The sixth article of the Agreement declares that
“the river Potomac shall be considered as a common highway for the
purpose of navigation and commerce to the citizens of Virginia and
Maryland, and of the United States, and all those in amity with them.”
The eighth article declares that “all laws and regulations which may be
necessary for preserving and keeping open the channel and navigation
of the river shall be made with the mutual consent and approbation of
both States.” If a doubt remained, therefore, it appears to me this must
remove it, and time will be spent in vain to illustrate the subject.
Mr. NELSON did not expect that this point would have been brought up
again, but since it had so happened, he felt a propriety, not to say
a duty, in recapitulating also what he had urged before, and adding
some further reasons to show that Congress had the right, and exclusive
right, of jurisdiction over all that part of the river Potomac within the
District of Columbia. The burden of the song appears to be this: that
because the States of Maryland and Virginia entered into compact before
the formation of the present constitution, by which it was agreed that
the river should be considered a common highway, and as both possessed
the right of way, it was a joint right, which, as they did not jointly
convey the right, has never been ceded to the United States. Does the
gentleman (Mr. CLARK) mean to say that the States of Virginia and
Maryland had not the power of granting this joint right? If he does not
assert this, or if he admits they had the power, we shall be able to
demonstrate that they have granted it to Congress. After two States have
made a division of a part of each of their particular property, cannot
they mutually give to another the property they have thus acquired?
Surely common sense cannot deny them the right so to do: if you cannot
grant away a right, it is no right, for a right cannot be complete if it
cannot be conveyed to another; the very idea of right implies the power
of disposal. They say that Maryland had the exclusive right of navigating
the river Potomac, and that she gave by compact a qualified property in
that exclusive right to Virginia. Cannot Virginia convey this qualified
right? If one holds a right to an estate for life or a term of years, is
it not as competent for the party to convey such right, as it would be to
convey an estate in fee simple? Whether the right be a special right, or
a limited right, or of whatever nature it be, every man has a right to
convey it to another, unless there be exceptions or reservations; but in
the compact between Maryland and Virginia there are no reservations or
stipulations that abridge or preclude a conveyance. Then he asked them
to propound this case: Maryland has a common right with Virginia in the
Potomac, and Maryland declares that she gives up all her right to ten
miles square of her territory--the Potomac is a part--Virginia also says
that, so far as she has a right, she gives it up also. Well, then, both
States have given up their respective rights. Does not the relinquishment
of their rights by both States produce the same effect as if it had been
done by a joint instrument? Maryland, he asserted, had given up her
right; no matter whether it was a real right or qualified right, she gave
up all but what she had conveyed to Virginia, and Virginia has given up
all she possessed.
Mr. J. RANDOLPH had hoped that the very perspicuous statement of his
colleague, (Mr. CLARK) when the subject was last under consideration,
had satisfied the most incredulous that Congress were not competent to
pass the bill before them. Indeed, he had hoped that the bill would have
been suffered to sleep through the rest of the session, and the House
no more troubled on the subject. The reasoning of the gentleman last
up was to his mind utterly fallacious and inconclusive. The district
was not necessarily divided into two bodies politic, because of the
intervening jurisdiction of Virginia over the Potomac. Did Massachusetts
constitute two States, because its parts were completely separated by
New Hampshire, through which you must necessarily pass to get into Maine
from old Massachusetts, as it was called? For the purpose of division
the mathematical line which marked the boundary between the two States
of Maryland and Virginia was equivalent to the whole breadth of the
Potomac. On the ground of natural right, Congress could not obstruct the
navigation of the river. They could not do it without admitting the right
of Virginia and Maryland to raise obstructions above and below. Those
States had as good a claim to stop the passage of ships of the United
States as Congress had to interrupt their bateaux. But gentlemen say they
are not stopping the navigation, they are improving it. How? by damming
up the best channel. Did not this justify any species of obstruction? It
was only to term it an improvement, and every objection was silenced.
Whatever might be the decision of the House, he trusted no member from
Virginia would be found to concede her right over the Potomac. He hoped
also that the subject would be suffered to remain at rest until the
question of recession was decided; but, in whatever shape it should
appear, he should always protest against it, as a violation of the rights
of the State which he represented.
Mr. SLOAN would leave the dispute, as to the right of jurisdiction over
the river, to be settled by those who were more competent to investigate
law questions than he was himself. But, from what he had heard, he had
brought his mind to this conclusion, that, whatever right Maryland
possessed to the jurisdiction of the Potomac, Congress was now entitled
to exercise. The gentleman from Virginia (Mr. J. RANDOLPH) has said that
Congress has no right to obstruct the navigation. True; but it does
not follow that Congress has no right to remove obstructions. He says,
also, that we might stop both branches. Not so; it is intended to stop
one only, in order to deepen the other, so as to render the navigation
more useful and safe. The case before us has been occasioned by the act
of God, or a great movement in nature; a great quantity of ice has been
lodged, and tore up from the shore and the island the materials that
form, perhaps, the base of this sand-bar, by which the navigation has
been obstructed. Now, suppose another case, that this ice had pent up the
whole body of the river, and compelled the waters to form themselves a
channel for escape through the lower grounds of the Virginia side, and
thereby have given a new course to the river; and it would not be the
first time that ice had been the cause of changing the bed of a river.
Mr. ALSTON did not intend to consume much of the time of the committee in
delivering his sentiments, as the discussion had already been protracted
to a much greater length than he, at the first view of the subject,
supposed it merited. It has been contended by several gentlemen that
Congress have no power to legislate at all upon the subject of the
navigation of the river Potomac. This really, to him, appeared to be a
very extraordinary doctrine indeed. That because Virginia and Maryland
had not jointly conveyed a common property, their conveyances separate,
although including this very common property, was not obligatory, and did
not convey to Congress exclusive legislation and jurisdiction over such
part of the river as lay within the District of Columbia. He admitted
that the river Potomac was a common highway, and ought ever to remain
so, for the benefit not only of the people of Virginia and Maryland,
but likewise for all the citizens of the United States choosing to
navigate the same; and to do any act whereby the navigation would, in
the slightest degree whatever, be obstructed, was more than we had a
right or ought to do. But would it follow, in consequence, that we had no
right to improve or benefit the navigation of the river? Most indubitably
not. It was, in his mind, clear, from the information he had received,
that, unless something was done for the benefit of the navigation of
the river, an end would soon be put to Georgetown as a commercial spot.
He believed it to be universally the case that the uniting of any two
streams of nearly equal size produced a bar or shallow place just below
their junction. If, then, the bar complained of, just below Mason’s
Island, has been produced in consequence of the uniting of the two arms
of the river, it seemed to him an inevitable consequence that, if one of
them was dammed up, the channel would return to its former depth. Mr. A.
could not see the force of an argument made use of by his colleague, the
honorable Speaker, if he understood him correctly, to say that, if the
dam contemplated should be effected, it would tend to injure the ferries
established on the river. In what manner the erecting the dam from
Mason’s Island to the Virginia shore could affect them, he was not able
to discover, as the land on the Virginia shore, opposite the ferries, and
the island, belong to the same person. He entertained no doubt but that
the same privileges would extend to the island as were now enjoyed at the
landing on the Virginia shore.
Mr. CLAIBORNE asked if the ten miles square, located and surveyed to the
United States, included the river? He rather suspected that they had laid
off ten miles square, exclusive of the river. If this were the case,
Congress had assumed jurisdiction over more territory than they were
constitutionally entitled to.
Mr. J. LEWIS.--My colleague has expressed a hope that no member from
Virginia would be found to sanction a measure so hostile to the rights
of that State. I lament extremely that I should, upon any occasion,
differ in sentiment with that gentleman, and particularly upon this;
but, because I am so unfortunate as not to agree with my colleague upon
this question, I hope I shall not, on that account, be charged with
an abandonment of the interests of Virginia. I am as tenacious of her
rights as my honorable colleague, or any other Representative from that
State, and I must, at the same time, be permitted to express my regret
that any member from Virginia shall be found to oppose a measure so very
interesting to a large portion of the citizens of that State.
Mr. MACON.--Although it may be a good rule, yet it is not a general one,
that people are well satisfied when they do not complain; yet gentlemen,
when they are sent here to legislate, must exercise their own judgment on
the probable consequences. If all the people of the district were to say
that this was a proper measure, he should still exercise his own opinion.
The gentleman from Virginia (Mr. LEWIS) had narrated the history of this
river, and informed us there was no impediment prior to 1784. He did not
doubt the correctness of the statement; but he should have gone further,
and informed us what was the population on the waters of the Potomac at
that time, and what it is at present, and likely hereafter to be; because
if such a mud bank was raised in the river when its banks had little or
no cultivation, what was it likely to be when thickly settled, for every
new farm and every additional cultivation, loosened the earth, which was
swept away by every fresh, and the mud bank at the head of tide water
would proportionally increase in magnitude. Such had been the case with
the Rappahannock, and if it should turn out that these two rivers are in
a similar situation, their trouble would be thrown away.
Mr. HOLLAND admitted that the quantity of mud would increase by
cultivation; but if the channel is deepened by narrowing the river, the
mud would descend lower and deposit itself in that part of the bed of
the river where the channel was deeper. He had no doubt of the right of
Congress to the exclusive legislation over the river, as well as over
every other part of the district. He should therefore vote for the bill,
believing that they had the right, and that the measure would be greatly
beneficial to the commerce of the country.
On the question being about to be put, Mr. EPPES requested the Clerk to
read the eighth article of the compact between Maryland and Virginia,
which being done,
The question on striking out the first section was put and lost--forty
members voting in the affirmative, and seventy-two against it.
The committee then rose and reported, and the House adjourned.
WEDNESDAY, December 12.
Another member, to wit: BENJAMIN HUGER, from South Carolina, appeared and
took his seat in the House.
THURSDAY, December 13.
_Impressment of John Gregory._
The SPEAKER laid before the House a letter from John Gregory, a black
man, alleging himself to be a native of Nansemond County, in the State of
Virginia, dated on board of the British ship-of-war, called the Alcmene,
the nineteenth of August in the present year, stating, that having lost
his protection, and being shipwrecked in the British Channel, he has
been impressed on board the said Alcmene, and detained there against his
inclination; and praying that Congress will be pleased to take his case
into consideration, and obtain his discharge from the British service.
The said letter was read, and, together with a certificate of the Consul
and Agent of the United States at London, accompanying the same, ordered
to be referred to the Secretary of State for information.
_Potomac River._
On the third reading of the bill for the erection of a dam or causeway
from Mason’s Island to the western shore of the Potomac, the yeas and
nays were called for by Mr. VARNUM.
Mr. DAWSON said: My absence from this House for some days past,
occasioned by my bad health, has prevented my hearing the arguments which
have been urged in favor of this bill, as well as those in opposition
to it; presuming, however, that they had much affinity to those which
were urged on its introduction, which, in my judgment, were conclusive
in opposition and feeble in support, I must be permitted to express my
astonishment that it has progressed so far, and that this House must now
decide on its passage or rejection.
In this stage of the business, and under existing circumstances, I
should not intrude a single observation, especially as I learn that the
subject has been fully discussed, and various votes taken, did I not feel
impelled by one consideration superior to all others; but, sir, whenever
a proposition is made which goes to affect the interest and wantonly
violates the rights of a State, one of whose Representatives I am, I hold
it to be my bounden duty to rise in the opposition. Such is the bill
in your hands, and under such influence do I now act. In my judgment
that bill usurps a power, and attempts the exercise of a right, which
the States of Maryland and Virginia never have, and I trust never will,
relinquish to any government--a right essential to them as sovereign
States, and the relinquishment of which will render them dependencies
not only on the General Government, but upon any corporation within the
District of Columbia.
In the course of this discussion, reference, no doubt, has been had to
the deeds of cession from those two States to the General Government; I
mean not again to bring them to their view, and mention them only for
one purpose. I presume that in the construction of those articles, the
same rules will be observed, the same principles will be adhered to,
which are observed in the construction of the original compact, the
constitution. I well know that in the construction of that instrument,
two opinions have gone abroad in the United States, and have their
zealous advocates: the one is, that the General Government possesses
all powers which it shall deem necessary, and which are not expressly
reserved to the States; to this doctrine I have never been a friend,
and am surprised to find that it has so many advocates on this day
who support that bill; the other is, “that all rights, powers, and
jurisdictions, are reserved to the States, which are not expressly
delegated to the General Government.” This is the doctrine which I have
always advocated, and which I support on this day by opposing that
bill. Admitting, sir, my first position to be true--that the same rules
of construction must be used in the two cases which I have mentioned,
I call upon gentlemen to show any express surrender of this right of
jurisdiction, either by the State of Maryland or that of Virginia.
None appears, and gentlemen must either adopt the extensive doctrine
of _implication_ as one of their political tenets, or relinquish that
bill. I will go further, sir, and declare it as my opinion, that the
legislatures of those two States never could have intended the surrender
of that jurisdiction. I was a member of the Legislature of Virginia at
that time, and the idea was new to me until the last year, when the
bridge proposition was brought forward. I appeal to the candor of the
gentlemen of this committee, and call upon them to say whether it is
reasonable to suppose that those two States, after taking uncommon pains
to fix, and render secure for ever, to themselves and their friends, the
navigation of this river; after uniting their efforts to open and improve
it to a considerable distance above tide-water, would surrender the
jurisdiction to any earthly power, thereby putting it in their power to
impede it whenever they please? for, be it remembered, that if we have a
right to throw up a dam in one place, we have a right to build a bridge
in another; if to build a bridge, to draw an artificial line at any
place, saying, “Thus far you shall go, and no further.”
For these reasons, I am convinced that the right has never been
surrendered; that it never was intended; and that it never ought to
be relinquished. Considering the objections which I have mentioned as
sufficient to defeat the bill, I have forborne to examine into its
expediency; whether it will prove advantageous to some of the district
and injurious to others, I will not pretend to say. One thing, however,
appears probable to me, that if, by the erection of this dam, the
rapidity of the water opposite to Georgetown is increased, and thereby
the sand and mud carried to a lower point and there deposited, that point
may be at or near the Eastern Branch, which we have established as our
navy yard, to which heavy vessels get with great difficulty, and from
which they may be entirely excluded, should the effect which I apprehend
take place. I submit this to the consideration of the friends of this
establishment, which is not without its enemies already.
One more word and I am done. If we admit the right to erect a dam,
we have the same to build a bridge; and if we grant the one for the
accommodation of one part of the people of the district, I know not how
we can refuse the other to the inhabitants of the other part. Let the
friends of the present bill look to this; the division of this House on
the last year, on that point, was very equal, and the admission of the
right will certainly give it new friends.
On the passage of the bill the yeas and nays were 66 to 39.
_Resolved_, That the title be, “An act authorizing the corporation of
Georgetown to make a dam or causeway from Mason’s Island to the western
shore of the river Potomac.”
THURSDAY, December 27.
_Mrs. Amy Dardin._
A petition of Amy Dardin, of the county of Mecklenburg, in the State
of Virginia, widow and administratrix of David Dardin, deceased, was
presented to the House and read, praying compensation for the value of
a stud horse, called Romulus, the property of the deceased, which was
impressed into the service of the Southern Army, under the command of
Major General Greene, by order of James Gunn, a Captain in a regiment of
Continental cavalry, some time in the month of July, one thousand seven
hundred and eighty-one.--Referred to the Committee of the whole House
to whom was committed, on the sixth instant, the bill making farther
provision for extinguishing the debts due from the United States.
_General Hazen._
An engrossed bill for the relief of the legal representatives of the late
General Moses Hazen was read the third time; and, on the question that
the same do pass, it was resolved in the affirmative--yeas 60, nays 38.
MONDAY, December 31.
_Post Road to New Orleans._
On a motion made and seconded that the House do come to the following
resolutions:
1. _Resolved_, That a post road ought to be established from
the City of Washington, on the most convenient and direct
route, to pass through or near the Tuckabachee settlement to
the Tombigbee settlement, in the Mississippi Territory, and
from thence to the City of New Orleans.
2. _Resolved_, That the President of the United States be
requested to cause to be laid before this House any documents,
and give such other information as he may think proper,
relative to opening a post road from the City of Washington to
the City of New Orleans.
The first resolution being twice read, was, on a motion made, ordered to
be referred to the Committee of the whole House, to whom was committed,
on the seventh instant, a motion respecting “the establishment of a post
road from Knoxville, in the State of Tennessee, to the settlements on the
Tombigbee river, in the Mississippi Territory, and from thence to New
Orleans; also, for the establishment of a post road from Georgia to the
said settlement on the Tombigbee, to intersect the former road at the
most convenient point between Knoxville and the Tombigbee.”
The second resolution being twice read, was, on the question put
thereupon, agreed to by the House.
_Ordered_, That Mr. HOLLAND and Mr. G. W. CAMPBELL be appointed a
committee to present the second resolution to the President of the United
States.
_District of Columbia._
Mr. GREGG called up the resolutions for a recession of the District of
Columbia to the States of Maryland and Virginia.
Mr. HUGER moved to postpone the same till this day week.
Mr. JACKSON moved to postpone them till the 31st December next.
Some desultory remarks were made, not touching the merits of the main
question; at length the question was taken on postponing till 31st
December, and lost, without a division.
On postponing till Monday next, the question was decided in the
affirmative--59 for and 31 against it.
An engrossed bill to incorporate the Washington Building and Fire
Insurance Company was about being read, when
Mr. GREGG expressed a wish that it might be postponed, and a speedy
decision had on the question of recession. He understood this was the day
fixed for that subject.
Mr. LEWIS observed that the motion for recession could have had no effect
upon this bill, as it did not contemplate the recession of the City of
Washington, but only of the other parts of the district.
Mr. STANFORD had intended to have called up the resolutions for
recession, but he had just received a letter from a number of the
inhabitants of the district, wishing a short delay. There were also
absent from the House several members who had taken considerable interest
in the subject. For these reasons, he did not intend to call up the
resolutions for two or three days.
Mr. EARLY was averse to a postponement. He thought an early decision
ought to be made, to quiet the minds and soothe the feelings of the
inhabitants, who felt a deep interest in the decision. Indeed, the
members themselves had had their feelings excited in no inconsiderable
degree. He hoped if the gentleman who brought the resolutions forward
should forbear to bring them up, some other gentleman would do it for him.
Mr. STANFORD was induced to let the subject rest a few days longer, on
account of those very feelings, and interest, which pervaded the whole
body of the people. He would also prefer a decision by a full House,
rather than by such a thin one as now appeared.
Mr. EARLY did not think that a thin attendance by the members was a good
argument for postponement. If it was expected that every member should
attend, he feared the public business would progress very slowly; but
if the subject was entered upon now, and the resolutions adopted, they
would have to take the shape of a bill, and it would be many days before
the subject was finally decided, by which time, no doubt, the absent
gentlemen alluded to would arrive.
Mr. LYON said the bill that was moved to be postponed had nothing to do
with the recession, as it was not proposed to recede the city.
Mr. GREGG knew that the resolutions excepted Washington City, but he
hoped that if a part of the district was to be receded, there would be
found a majority for receding the whole. He was against the recession
altogether, and so he should be till the question was decided against
him. The business had been so long before the House, that he could not
see any reason for further delay.
On the question to postpone the bill for incorporating the Washington
Building and Fire Insurance Company, there were 51 for it and 42 against
it; and the bill was postponed accordingly,
The House then adjourned to Wednesday.
MONDAY, January 7, 1805.
_District of Columbia._
The House resolved itself into a Committee of the Whole, on a motion “to
recede to the States of Virginia and Maryland, the jurisdiction of such
parts of the Territory of Columbia as are without the limits of the city
of Washington.”
Mr. STANFORD said it was his wish to make a few observations on the
resolution now before the Committee, for the retrocession of that part of
the District of Columbia which had been ceded to the United States by the
State of Virginia, in support of the vote he should give--expecting that
what was said on the first, would be generally applicable to the last
resolution also. He begged leave, however, in the first place, to suggest
that, in bringing forward the motion, he had not had any the least
intention to take any step that should go to a removal of the government.
He trusted no gentleman of the committee would entertain such an opinion
of his views. Had such been his intention he would have preferred a
direct motion to that effect.
As then both the resolutions together made but a single object--that
of ceding back again to the respective States of Virginia and Maryland
all the District of Columbia, except the city of Washington--he should,
in the course of the discussion, consider it more incumbent on those
adverse to the measure to show the original wisdom and utility of
the provision in the constitution, than on its friends. It would be
enough for them to show its present evil tendency, and that it was an
encumbrance no way necessary or useful to the General Government.
Upon a former occasion some question had arisen, and might yet lie in
the way of some gentlemen, whether Congress, having once accepted the
cessions of the States, had now the power of recession. On that head he
had not, himself, ever found reason to doubt. By the third section and
fourth article of the constitution, “Congress has power to dispose of,
and make all needful rules and regulations respecting the territory or
other property belonging to the United States;” and besides, the eighth
section of the first article, which assigns to Congress the exclusive
legislation over this district, in all cases whatsoever, does not appear
to come short of such a power. Like authority is also given, in the same
paragraph of the constitution, over all places purchased by the consent
of the State in which the same shall be, “for the erection of forts,
magazines, arsenals, dock-yards, and other needful buildings.” Congress,
thus possessing the right of disposal, had exercised that right by an act
passed two sessions ago, authorizing the Secretary of the Navy to convey
to the Salem Turnpike and Chelsea Bridge Companies a part of the navy
yard at Boston. With it, will any one contend that jurisdiction did not
also pass to the State of Massachusetts, whence it had been obtained? It
certainly would by every fair and _bona fide_ view of the circumstances.
If, for instance, murder should be committed on that part of the turnpike
which was formerly a part of the navy yard, could it be contended that
such murder was not punishable by the laws of Massachusetts; that the
General Government was the only competent authority to punish? He hoped
otherwise. A like discretionary power of cession was also exercised when
Congress anticipated the ordinance, and transferred the jurisdiction to
the people of the North-western Territory, which now forms the State
of Ohio. It would be remembered that, at the time of the transfer, the
United States held the exclusive jurisdiction of that territory.
But, said Mr. S., over and above the consideration that the District of
Columbia is in no way necessary, and every way expensive, to the General
Government--in fact, a kind of governmental nuisance that ought to be
removed--there was another objection, still more serious with him, the
people of the district were the merest subjects in their condition. If
they held rights, they were not apparent to him in the constitution. He
believed all they held were those of courtesy. In the constitution no
immunity, no privilege, no political right, had been, in so many words,
reserved to them. They had been specifically given away, consigned
to the ideal convenience of the General Government, without a single
specific reservation. This was not the case as to the people of the
States. If he were told the people were content, and did not wish a
change, that with him was a good reason why the motion should at once
prevail. If twenty, or twenty-five thousand people had already become
willing subjects, without wishing any share or control in their own
affairs, such an example ought no longer to remain under our system of
government, and he trusted would not. He concluded by expressing a hope
that the resolutions might be adopted.
Mr. SMILIE rose in reply. He disclaimed any intention hostile to
Washington remaining the seat of Government, and denied that the
recession would have any influence upon it. Having elucidated the
constitutionality of the measure, he exhibited in strong colors the
degraded situation of the people of the district, and the dangers which
might hereafter arise from a continuance of it.
Mr. DENNIS.--Mr. Chairman: As a resolution analogous in all its leading
features to those now under consideration, was submitted to the
consideration of a former Congress, by a gentleman from Massachusetts,
(Mr. BACON,) and as that resolution was put at rest by a very decisive
majority, I had not expected that its ghost would have risen up at
so early a day to haunt the people of Columbia, or to interrupt the
deliberations of this body. That the gentleman who has offered these
resolutions has acted from the best lights of his own understanding, and
has believed the object intended to be thereby effectuated is both within
the pale of our constitutional authority, and politically expedient, it
is not for me to question. To me, however, they appear unconstitutional
and politically inexpedient, and I will moreover add, cruel, unjust, and
tyrannical, in their operation on the people of this district.
In order to ascertain the extent of our power on the subject, we must
resort to the eighth section of the first article of the constitution.
Here we find that, amongst other powers therein enumerated, it is
declared as follows: “That Congress shall have the power to exercise
exclusive legislation in all cases whatsoever, over such district (not
exceeding ten miles square) as may, by cession of particular States, and
the acceptance of Congress, become the seat of the General Government,”
&c. This clause contemplates, first, a place to be acquired, lying at
the time within the jurisdiction of some of the States, but which was
to be put out of their control and within the exclusive jurisdiction of
the General Government. This was to be done in order that a permanent
seat might be established, which should not be liable to be changed by
legislative caprice; and in order that the jurisdiction over the place in
which its operations were to be conducted might be, like the Government
itself, the property of the whole people of the Union, and free from the
influence of any one of its component parts.
This appears to be as much a part of the constitution, that you should
always have this federal district, as that there should be a Legislative,
Executive, and Judiciary Department.
2d. It points out the manner in which this district shall be acquired,
and the agents who are to be instrumental in the acquisition. The
convention, on behalf of the people of the United States, who are
the principals, appoint Congress the attorney in fact to receive the
conveyance, and constitute the Legislatures of the States from whom
the cession or conveyance is to be made similar agents to make it. The
several agents have performed their respective offices, the district has
been acquired in conformity with the authority given, the right to the
property vested in the American people, and possession held of it by us,
for their benefit for whose use it was acquired. All the power which
was given as to the acquisition of the territory has been exhausted,
and no other power remains but that of exercising over it exclusive
legislation. To explain and illustrate this subject to the most ordinary
capacity, let me compare the transaction to a case in common life. If I
give a man a power of attorney to purchase for me a tract of land, in a
particular district of country, of a specified quantity of acres, leaving
it to him to make the location, and he accordingly make a purchase, and
I consent to the act, receive the conveyance, and take possession of
it, can my agent afterwards make another choice, divest me of my right,
and reconvey the property without my consent? No man will answer this
question affirmatively; and yet it is clear there is a perfect similitude
between the cases, and that Congress are agents acting in this case under
a limited authority and confined in the exercise thereof to a specific
object. That Congress are special agents, and not vested with a general
power over every possible case, is manifest from the whole tenor of the
constitution; and I will lay down in this instance a rule which has
been generally recognized as the standard, by which to test the extent
of constitutional authority in any given case. It is, that Congress can
exercise no power on any subject but what is expressly delegated and
specifically enumerated in the constitution, or necessary and incidental
to the execution of the specified powers. What is their power in the
present instance? To accept a cession and exercise over it exclusive
legislation. Can you infer from hence a power of retrocession? To do so
is at war with the amendment of the constitution, which declares that all
powers not given to the General Government are retained by the States or
the people respectively. Was not the power confined to the acceptance of
the district directed to be procured for a specific purpose, and when so
acquired, to continue an object over which Congress, as a permanent body,
might always have it in their power to exercise exclusive jurisdiction?
Can you then claim the power of reconveying the district and receiving
one as often as your caprice may dictate, or of divesting your successors
of the same control over this district which we may exercise ourselves?
The power is not expressly delegated, nor is it a necessary power to
carry into effect any power given; for it will not be contended, but we
may exercise all our powers and perform all our duties, and still retain
the jurisdiction over the district.
This district has been completely severed from Maryland and Virginia,
and has been erected into two counties by the name of Washington and
Alexandria, and forms, at this time, no more a part of the territorial
limits of Maryland and Virginia, than of New Hampshire or Georgia; and
you may by the same authority that you propose to reannex them to those
States, unite them to Delaware or Jersey, and put the people, many of
whom never were citizens of Maryland or Virginia, under the jurisdiction
of the Emperor of Hayti.
But, Mr. Chairman, are the people of the territory unworthy of a
moment’s consideration, and will their remonstrances against the
measure be altogether disregarded? Let us take a retrospective view
of the circumstances under which they were seduced from their parent
State, and the manner in which they consented to dissever the civil and
political bonds by which they were formerly connected. What induced them
to alienate their native allegiance, and with a generous confidence to
submit themselves to your authority? First, the constitution held out a
pledge and formed the basis of the contract, involving a promise, that
if the people living in the district of country which should be fixed
upon for the seat of Government, would give up the rights possessed
under the government of the States to which they belonged, they should
for ever remain under the exclusive jurisdiction of Congress. By the act
of Congress accepting the cession, the territory received is declared
to be the place fixed on for the _permanent seat_ of the Government,
and the States ceded for ever the jurisdiction of the persons and soil
within the same to Congress, for the purpose of exercising therein
exclusive legislation. Finally, you assume the government, establish your
own systems, and annul those of the States. Confiding in the premises,
they gave up the control of their persons, and some of them divided
with you their property. They came to you with one consent, and hailed
your arrival here as the most fortunate epoch in the annals of their
country--and now, will you set them adrift without deigning to listen to
their prayers?
This being the seat of Government, where all the representatives of
the nation are collected, and who, from the responsibility which they
owe to their respective constituents and to the whole people of the
United States, are under every moral and political tie to do justice,
and to protect the rights and interests of the people here; here every
citizen of the district has access to every member, and he may personally
communicate his wants, his wishes, and solicit his particular patronage
of his interest; and instead of being confined, like a district of
country in the remote parts of the Union, to a single member, who may
not possess the talents to explain its interests to the legislative
body, the citizen of this place may make a selection out of the whole
of the members to whom he may choose to confide his application. Like
the seat of Government in all other places, without having any actual
representation, this district will have more than its equal share of
influence, and its weight will always be felt more sensibly in the
Legislative Councils of the nation than the remote parts of the Union.
Our theoretical philosophers, however, not only contend that in order
to make these people free and happy, we must force liberty upon them,
whether they will have it or not, but that even with respect to the
conveniency or inconveniency of being governed by this body and the
States of Maryland and Virginia, they are incapable of judging for
themselves.
But is there no conveniency resulting to them from having all their
concerns brought within the narrow limits of ten miles square? Is there
no conveniency in having their own courts of justice at their very doors,
instead of travelling to Richmond and Annapolis? It is an old-fashioned
idea perhaps, but it is one which very generally prevails, even at the
present day, that to bring justice home to every man’s door, is a great
political and civil blessing; and in this respect the people of this
place enjoy an advantage which is unknown to any other people in the
world.
The great advantages contemplated as likely to result from being
represented in the Legislatures of Maryland and Virginia, and the powers
of self-government which it is supposed may result from the measure, are
merely ideal. What weight will the district on the Virginia side of the
Potomac have in the large body of the Legislature of that State, when
they will only form a part of the county of Fairfax, and have a share in
choosing two members to the Assembly? The same question might be asked in
relation to the district of country formerly comprehended in the counties
of Prince George and Montgomery, in Maryland. They would be regarded
with a jealous eye; a sort of aliens, who were forced, contrary to their
remonstrance, to submit to their respective jurisdictions.
Mr. EARLY.--Mr. Chairman, the resolutions which we are now called upon
to decide, possess a high degree of importance, not only from their
object, and the consequences likely to result, but also from certain
principles which have been contended for, as applying themselves to the
subject. In the outset of the discussion we are met with objections
upon constitutional principles against our right. We have been told by
the people of this district, that we cannot recede the territory of
which they are inhabitants without their consent; and the gentleman from
Maryland (Mr. DENNIS) has told us to-day that the proposed recession
cannot be made without the consent of the people of the whole United
States.
It is certainly desirable that all questions of this nature should
receive a solution from the principles and practice of our own
governments, without having a resort to foreign sources. But much I
fear that the condition of the District of Columbia is one of a nature
so peculiar to itself, that no such solution can be found. For it is
impossible to conceive that the principles of a government whose essence
is right, should be found to apply to the situation of a people stripped
of all right.
The proposition that the consent of the people of this district is
necessary to give validity to an act of Congress, having for its
object a recession of the territory, carries with it the resolution of
itself. It proves too much. The same reason by which they maintain this
proposition, would go to prove that their consent was necessary to give
validity to any act of legislation over them. That Congress possess the
power of exclusive legislation over them, cannot be denied. We exercise,
and we are authorized so to do, a power over all their rights of life,
liberty, and property. And there cannot be presented to my mind a greater
absurdity than to say the consent of the people of Columbia is necessary
to any act in relation to them, when they are stripped of all rights of
self-government.
Mr. EPPES, with the gentleman from Pennsylvania, (Mr. SMILIE,) considered
the question of receding the Territory of Columbia as entirely separate
and distinct from a question to remove the seat of Government. He did
not understand the particular connection between the two questions. He
believed that the seat of Government would be as permanently fixed here
if the jurisdiction of Congress extended only over the soil covered by
its public buildings, as if it embraced any given number of square miles.
All that the National Legislature wants here is accommodation. Assembled
at this place for purposes of general legislation, the exercise of a
local sovereignty over a few square miles is neither beneficial to the
nation nor interesting to Congress. The right of legislating for persons
around us, whose local interests we do not feel or understand, cannot
attach to this spot the Representatives of the nation: the exercise of
this power by Congress cannot attach to this spot the nation itself.
The public convenience and interest fixed our Government within this
territory; the public convenience and interest can alone continue it
here. The permanent seat of our Government depends, not on the extent of
our powers over the country around us, but on the will of the nation.
Whatever might be the feelings of other gentlemen on this subject, he had
no hesitation in declaring, that, although he was in favor of receding
the Territory of Columbia, he should never feel himself authorized,
as a Representative of Virginia, to vote for a removal of the seat of
Government.
The committee now rose, reported progress, and had leave to sit again.
TUESDAY, January 8.
_The District of Columbia._
The House again resolved itself into a Committee of the Whole on a motion
of the twenty-ninth of November last “to recede to the States of Virginia
and Maryland the jurisdiction of such parts of the Territory of Columbia
as are without the limits of the city of Washington.”
Mr. SOUTHARD.--Mr. Chairman, I should have contented myself with giving a
silent vote on this question, had it not been for the strong impressions
on my mind that more is intended than expressed in the resolutions now
on the table. It is not two years since two resolutions were introduced
to this House similar to those now under consideration, with this
distinction, that _they_ went to include the city of Washington with the
other parts of the district in the transfer to the States of Virginia and
Maryland.
I believe it to be the object of some members not only to recede the
branches of the district contained in these resolutions, but likewise
the city. If the doctrine so strongly contended for, that Congress has a
right to transfer or recede, be once established--take the first step,
and you may as easily take the second. I have no desire to call in
question the sincerity of the mover of these resolutions, nor of many who
support them; yet there are others who wish a recession of the _whole_
territory.
This subject involves two questions: First, whether Congress has a
constitutional power to make a retrocession of this district to the
States of Virginia and Maryland; and secondly, whether it be good policy.
As to the first, Mr. S. said, he had strong doubts on his mind, as to the
rightful power of Congress to recede or transfer.
The members of the convention who framed the Constitution of the United
States looked forward to a day when it would become necessary to fix
a place which should become the permanent seat of the Government. By
reference to the eighth section of the first article of the constitution,
we see it clearly expressed that Congress shall have power “to exercise
exclusive legislation in all cases whatsoever, over such district, not
exceeding ten miles square, as may by cession of particular States, and
the acceptance of Congress, become the seat of the Government of the
United States.”
This article, with all others contained in that instrument, after
publication for the consideration of the people of the United States,
was adopted, and became a part of the constitution. In pursuance of this
object, Congress, on the 16th of July, 1790, passed an act, entitled “the
cession act,” in the words following, to wit:
“That a district of territory, not exceeding ten miles square,
to be located as hereafter directed, on the river Potomac,
at some place between the mouths of the Eastern branch and
Conococheague, be, and the same is hereby accepted for the
permanent seat of the Government of the United States.”
Congress accepted a cession of ten miles square for the express purpose,
and on the express condition of exercising exclusive legislation and
jurisdiction, and this, too, agreeably to the spirit and meaning of the
constitution and law, thus forming a compact which Congress has no right
to violate. All the States in their Legislative capacity, and the people
of the United States, including the inhabitants of this territory, are
bound by this compact, which compact is as strong as the constitution
itself.
Mr. FINDLAY observed that, after what his colleague (Mr. SMILIE) and
others had said in favor of the resolutions for a retrocession of the
territory, exclusive of the city, he had not expected to hear any
objection to the resolutions on arguments derived from the constitution;
the resolutions for receding the territory to the States who had made the
original cession might, he thought, have been fairly combated, on the
ground of expediency; on this ground only did the resolutions before the
committee rest. He gave the credit, however, to the gentlemen opposed to
the resolutions, for their ingenuity in taking the most tenable ground,
though not directly involved in the question, but he acknowledged it
was indirectly connected with it. If we had not a right to retrocede,
the Representatives of the United States undoubtedly might decline to
exercise jurisdiction, for whatever the rights of the people were, the
Legislature must be free to act or not to act. If this is not the case,
it could not be a sovereign Legislature; Congress itself, in this case,
would act by compulsion.
He said that, though a member of the ratifying convention of
Pennsylvania, and of the Legislature of that State, and of Congress
since that time, he did not remember ever to have heard it suggested
that Congress was not vested with the same discretion in this case as
in others, expressed in similar terms. He had, indeed, of late, heard
several members say that Congress was obliged to establish a permanent
seat, &c., but, in taking a review of the constitution, he found no
such expressions. The word permanent was not in that instrument, nor
any other expression that made it the duty of Congress to establish a
permanent seat, more than to establish a permanent excise, direct tax,
or bankrupt law. The word permanent, however, he found in an act of
Congress, but certainly not authorized by the constitution; and this
present Congress had equal power to make a retrocession as that Congress
had to accept. He said it was not necessary to prove to the members
of this committee that laws, in their nature, were not permanent, but
changeable with circumstances, and that Congress had by the constitution
equal powers with any other Congress. That, from the express words of
the constitution investing this power in Congress, and from its analogy
to the investiture of other powers, no argument could be drawn against
the resolutions; that every argument of that kind he had heard was not
taken from the words of the constitution, but from constructions given to
it which he conceived the words would not bear, and which would have a
ruinous effect applied to other powers expressed in similar words. That
he did not consider himself bound by what other gentlemen fancied the
constitution meant or intended, but by what it said.
Mr. F. said it had been frequently asked what more difficulty there was
in legislating for ten miles square, than for the city alone. In answer
to this, he asked those members to recollect how many applications had
been made, how many laws have been passed, how many days have been
occupied in legislating for other parts of the district than the city.
He would ask what the people would lose by being receded to the States
to which they formerly belonged, and what they gain by the members of
Congress, who have no common interest with them, nor even acquaintance
with them or their peculiar circumstances, and liable to be imposed on
by every one with whom they converse, legislating for them? He said that
it had not been made to appear that the people would suffer any loss by
agreeing to the resolutions, and that, as it was indubitably evident that
the public would gain advantage, he hoped they would be agreed to. He
had early observed that there were nearly as many interfering interests
in this ten miles square, as in the whole United States; the members of
the committee would recollect that several of the most tedious debates,
accompanied with the greatest irritation, that had taken place this
session, arose from such subjects.
Mr. BOYD said, that, although some gentlemen had left the
constitutionality of the proposed measure out of the question, he was
not satisfied any more on that point than he was of its expediency. The
constitution was to him the polar star by which his course through the
sea of politics would be regulated. The constitution had been formed by
a convention composed of delegates from the several States of the Union,
and was afterwards adopted by State conventions, on behalf of themselves
and the people. He had been a member of his State Legislature, when they
passed a law ceding a part of their territory, well knowing that if
Congress did accept it, by the constitution, they must and would exercise
exclusive legislation over such district. He was well aware at that time
of the consequence of accepting a district of territory not exceeding ten
miles square, as laid down in the section so often alluded to; and he
did believe that that consequence would be, that Congress must exercise
exclusive legislation whenever they accepted the ceded district. The idea
of recession was not taken up at that time. The States of Pennsylvania,
Delaware, New Jersey, Maryland, and Virginia, made offers of cession
under the terms of the constitution. A partial cession was accepted by
Congress from Maryland and Virginia. If a new disposition is to be made
of this district, he did not see why Congress might not convey it to any
of those States which had proffered to comply with the constitutional
suggestion, and receive from the same another territory in lieu thereof.
This statement he made merely to show the absurdity of recession, as it
had presented itself to his mind.
Mr. NELSON meant to lay his opinion before the committee, because it
appeared to be the habit of members to assign reasons for voting, without
expecting to make any impression upon others. He considered the present
question of the greatest magnitude to the United States generally; and of
peculiar importance to his immediate constituents. He thought he should
be able to show, to the satisfaction of every member present, that the
removal of the seat of Government, which would be the consequence of
recession, was not only inexpedient, but also unconstitutional. If he
was successful in making out his point, that it was unconstitutional, he
presumed the question of expediency need not be argued; the measure would
be set at rest, and not a member would be found to give it his support.
But, if he should prove unfortunate in this respect, which however
appeared to his mind as true as that two and two make four, he might have
reference to the question of expediency.
Previous to an inquiry into the constitutionality of the proposed
project, he would just observe that constitutions themselves were things
of recent date. Before the American Revolution the word itself was never
fully understood. Lexicographers who attempted to define it never could
agree. There was no practice whereupon to try its meaning. No power
on earth had a constitution before the American States. True, England
has long boasted of possessing a constitution, and so satisfied were
her statesmen and politicians of the reality of this imaginary being,
that they have extolled it to the skies. The glorious Constitution of
England, her pride, and the envy of the world! Fine words truly; but
where is the thing itself to be found? Is it reduced to writing? No.
Who has seen it? No man. Is it known to any man? If it be, no two agree
as to what the boasted Constitution of Britain is. How different, how
honorably different, is the American Constitution! With us it is reduced
to writing. It is in every man’s hand; it is known to the whole world,
and every citizen agrees in its true and legitimate meaning. He would
take this opportunity of expressing his voice, and of holding up his hand
in resisting the doctrine of construction and inference formerly set up,
whereby the tenor and effect of that invaluable instrument was likely to
be changed. He knew that artful and ingenious men might twist and turn,
and make it, like the word republican, to mean any thing or nothing,
as best suited their nefarious designs. But this declaration and these
attacks upon the body of that sacred work, were introduced by insinuating
and artful lawyers, aided by the villany of judges, and accepted by men
employed in the administration of our public and most important national
affairs.
He saw nothing to justify the present motion. Gentlemen had attempted to
show, not only its policy, but also its constitutionality. He, however,
could not discover any words on that paper that warranted the project in
the most remote degree; perhaps it had escaped his search; but he rather
suspected gentlemen relied more upon an inference than on either the
letter or spirit of the instrument itself. But he here would repeat, that
no man was authorized to infer or construe, from the constitution, any
other thing than what the plain sense of plain words would justify.
Mr. ELMER said he agreed with the gentleman from Maryland who had just
now been up, that the question before the committee is an important and
weighty one; but it seems that it is not of itself sufficiently weighty
for that gentleman’s shoulders, for he has loaded it with much extraneous
matter. Had the gentleman proved to my satisfaction either of the
positions which he promised to demonstrate, I would not have troubled the
committee with any remarks on the subject, but would have joined him in
voting against the resolutions on the table. But, unfortunately for me,
I have, by everything that has been said, become more convinced of the
constitutionality and expediency of carrying the resolutions into effect.
Mr. R. GRISWOLD said the object of the present motion was, he supposed,
to make a permanent recession of the two parts of this district, one to
Virginia, and the other to Maryland, retaining the city of Washington.
If this was really the object, there could be no doubt but it went to
operate a change of the seat of Government. This he would endeavor, in as
few words as possible, to demonstrate. The eighth section of the first
article authorizes Congress to assume the exclusive legislation over a
district not exceeding ten miles square, &c. The States of Maryland and
Virginia ceded a district of ten miles square, or any lesser quantity,
and Congress accepted a part from each State, making one district, to
become the seat of Government of the United States. From this statement,
it is apparent that the territory, or district, of Columbia is the seat
of Government, and not the city of Washington. If, then, you recede the
territory, you recede the seat of Government, although you reserve the
city of Washington. He asked, then, whether this did not substantially go
to remove the seat of Government? After you have receded two parts of the
district, can a district be said to remain? If it does not remain, your
seat of Government is gone, and gentlemen are justified in connecting
the idea of removal with that of recession. Indeed, he felt surprised
at the declarations made by gentlemen on this floor, that the recession
had no connection with removal, and if they thought it had, they would
abandon the measure; yet, nevertheless, they give the resolutions their
warmest support.
He was not prepared to say that Congress had no right to exercise
the powers of recession and removal; but he did not think they were
prepared to act upon those questions at the present day. He, however,
acknowledged, that events might arise to make a removal necessary, but
nothing of the kind had yet occurred. There were some inconveniences in
residing here, but the members knew them, and they are lessening every
day. If, however, gentlemen are not satisfied with the accommodation,
and think that a justifiable ground for removal, they will vote for the
motion, if they can get over the constitutional objections, which had
considerable weight on his mind.
It was very clear to him, that the convention which framed the
constitution intended and designed to establish a permanent seat of
Government; that the constitution fully and effectually provides for that
object. The circumstances which gave rise to the measure are too recent,
and must be too fresh in the minds of the members of this committee, to
render it necessary or useful for him to detail them at this time. Now,
whether the convention accomplished the object they had in view, the
constitution would decide; and whether the object had been accomplished
by the cession of particular States and the acceptance of Congress, the
laws will decide. But whether it is wise or expedient to destroy a work
on which so much wisdom, time, and money had been expended, the gentlemen
forming this committee will decide.
There were doubts entertained of the constitutionality of the measure of
retrocession, and if gentlemen doubted, it would be much safer not to act
on the subject than to risk the breach of the solemn obligations they had
entered into at that table. He thought the weight of the argument on the
expediency preponderated on the side he had advocated; and, from the most
candid view of the subject, he was inclined to recommend the rejection of
the resolutions; at all events, he should give them his decided negative.
Mr. CLARK.--The question before the committee is truly of considerable
importance, not only as it respects the constitutionality but the policy
of the measure. He was sorry he had not the talents requisite for a full
and complete investigation of so great a subject. Bred to an occupation
purely professional, he had been led more to the study of detail and
practice, than to abstract theories; hence it was, that, engaged in
that laborious pursuit, he had no time and less opportunity of studying
the diversified objects of political science. Thus circumstanced,
he approached this question with extreme diffidence and cautious
circumspection; the infraction of the constitution was to him a source
of alarm, and however great the object or brilliant the achievement, he
stood appalled at the prostration of that constitution he had always held
in an estimation that approached to reverence.
But, on reflection, he was convinced that Congress were not about to
violate their oaths, as had been insinuated, by the adoption of the
present motion. He considered them in the exercise of a legitimate
authority, and he would endeavor, in a brief manner, to examine whether
they had not complete constitutional power to make a retrocession. If
he was capable of demonstrating this point, he trusted he need not go
further. But, it was necessary he should, in order to ascertain whether
the present was the proper time, and the resolutions the correct mode?
In doing this he had no prejudice to gratify or caprice to indulge; a
stranger to the place, a stranger to the people, he had no motive to
action but the unbiased result of his own opinion.
He should not, however, look into the constitution for sections wherefrom
to draw a constructive power on this head; he was not one of those that
collected power from implication, and if the authority is not expressly
given, he would not assume it. The eighth section of the first article
gives to Congress the power of exercising the sole and exclusive
legislation in all cases whatsoever.
What is the appropriate meaning of the word “exclusive” as here used?
It implies more than the debarring and shutting out all other possible
powers of legislation, and, when taken in connection with the after, and
immediately following words of the paragraph, it vests the absolute and
uncontrollable power in Congress, free from any restriction; there is no
possible case in which it cannot legislate. The constitution declares
Congress shall legislate in all cases whatsoever. But gentlemen say there
is a case in which Congress cannot legislate. Aware of this absurdity, a
distinction is attempted to be drawn between legislating for inhabitants
of the district and for the district itself. But if it be established,
as I think it has been, that Congress is here omnipotent, if you will
allow me the expression, the conclusion in both cases (admitting the
distinction, which can by no means be done) is the same; in one case, the
retrocession will mean nothing more than a cessation from legislation,
accompanied with a desire that it may be resumed by the States; in the
other, it will be a complete transfer of the district. In this sense it
must be considered; the very words go the whole of this length. It is
given to Congress, and not to the people; it is a complete investiture,
boundless and indefeasible; and this is a full answer to the argument of
gentlemen that the power is held in trust and not absolute.
As to the expediency of retrocession, he would add a few words. When
he took a view of this mighty ten miles square, he saw nothing
pleasant--nothing political--to commend. He spoke of the inhabitants,
whenever he had occasion to allude to them, with pity and compassion; and
he most devoutly wished to see them placed, as Americans, in a condition
more congenial to his own feelings, and the feelings of every true lover
of civil and political freedom. The question in this point of view will
be, Is it proper for Congress at this time to recede the parts of the
district contemplated by the resolutions?
He should allude to the expense, in order to give an answer to that
question--an expense enormous, indeed, yet every day increasing, and
one which threatened to defeat every calculation made to ascertain
its amount. The time of Congress is occupied day after day in
trifling Legislative provisions for this or that particular spot, so
inconsiderable in size or commercial importance as scarcely to furnish
a speck in the map of the United States. But laying this circumstance
out of sight, he would ask, Was Congress competent to legislate for
the inhabitants of the district? He had hoped when he first came to
Washington that they were, but experience had convinced him that they
were not equal to the task. One day they received petitions to make
certain provisions for the benefit of the people of the district,
and Congress, with the best intentions and dispositions, went into
the inquiry. After some progress made therein, a counter-petition is
presented, and the House is suspended between two or more jarring
interests. How much better, then, would it be to let these people have
recourse to those Governments which understand their real views, and
can adopt measures to ameliorate their condition! Congress is composed
of materials too heterogeneous ever to do this with any tolerable
satisfaction.
Mr. SLOAN.--My friend from Maryland (Mr. NELSON) has observed that it
is customary for members to express their sentiments on subjects under
discussion in the House--not that he expected to make one proselyte by
his observations. I perfectly agree with him that there is no reason to
believe that he has, for this plain reason: he has not adduced a single
fact in support of his argument; but, after exploding all conclusions
drawn from implication or construction, drew his own from nothing else.
But, Mr. Chairman, under sanction of the aforesaid custom, and also from
a sense of duty, I beg the attention of this committee to some brief
observations on this important subject. I consider it as altogether
improper, unfair, and unjust to blend a subject under discussion with
others not even contemplated, and to endeavor to influence the minds
of members with predictions of certain events, yet in the womb of
futurity, that may or may not come to pass. The end contemplated by the
present resolutions is neither the removal of the seat of Government,
nor to prevent Congress from exercising exclusive jurisdiction over any
territory, but to reduce the present quantum. But, say the opposers of
these resolutions, the proposed retrocession of a part of the territory
is intended as an opening wedge, preparatory to a total retrocession and
removal of the seat of Government.
Mr. Chairman, I do not pretend to a foreknowledge of any member’s
thoughts before they are articulated in words; those who have this
foreknowledge have a great advantage over other members who have it not;
but I am free to declare that my opinion is quite the reverse--believing
that the retrocession of that part of the territory contemplated by the
resolutions now under consideration, would have a tendency to continue
the seat of Government in this place.
But it has been asserted that we have no right to make the proposed
retrocession, and from the dictatorial style of the resolutions of the
town of Alexandria, and the positive assertions that we have heard on
this floor that it was unconstitutional, oppressive, and tyrannical, I
expected from the usual accuracy and correctness of the member who made
those assertions, (Mr. DENNIS,) that he was in possession of documents to
substantiate the fact; but, to my surprise, instead of such documents, he
has adduced and principally relied on the constitution, in which there
is not a single imperative sentence obligatory on Congress, either to
receive a cession, or, when received, to continue exclusive jurisdiction
over one foot of territory--the plain and unequivocal language of the
constitution leaving it perfectly optional whether to receive, and, if
received, whether to retain jurisdiction or not. Hence, I conceive that
no legislative body can be justly charged with tyranny or oppression
for altering or (if from experience it becomes necessary) disannulling
their own acts--a contra-opinion I consider as altogether uncongenial
to improvement, genuine liberty, and the inherent rights of man, and as
such, I hope will ever be exploded in these United States.
WEDNESDAY, January 9.
_District of Columbia._
Mr. THATCHER was opposed to the motion for a recession, and he had heard
only two reasons urged in favor of the measure; that the exercise of
exclusive legislation by Congress over the District of Columbia was
attended with an undue expense of the public money, and occupied so much
of their time, that the business of the Union was interrupted and put to
a stand by the interference of the local concerns of this place. This
statement he did not believe to be perfectly correct; no doubt some of
their time was taken up, but he would leave it to every gentleman to say,
whether, if they had even more business before them than they had, there
was not time enough to transact it. The House usually sat from eleven
o’clock until three; but it must have been frequently observed, that
the adjournment took place much earlier for want of business to employ
them. But he was not an advocate for the present mode of conducting
the business of the district; it would perhaps be a better way to give
them a subordinate government, controllable by Congress; or a committee
of Congress might be appointed for the purpose. He did not see that the
complaint of too much legislation was well founded, in any thing that had
taken place during the present session. If the little labor they had to
perform was too great for them, what must the labor of their predecessors
have been, who had passed all the laws in existence for the government of
the district, and yet he had never heard any complaint made by them on
the ground now taken; they knew that the constitution enjoined upon them
the duty of exercising exclusive legislation over the ten miles square,
and they performed it with patient attention.
His mind revolted at the idea of recession. Gentlemen had contended that
the powers exercised over the people of Columbia were derogatory of, and
inconsistent with the principles of free government. Yet, what does this
motion for recession propose? Why, to transfer them and the territory
away, in the manner practised in Russia, in the transfer of provinces or
manors, transferring the vassals with the soil. This may be truly called
derogatory to the principles of freedom. Nor is this all; for you do not
transfer them merely without their consent, but in the face of their
serious remonstrances against the transfer.
Mr. SMILIE advocated, and Messrs. HUGER and CLAIBORNE opposed the
resolutions; when the question was taken on agreeing to the first
resolution, for receding that part of the district formerly attached to
Virginia, and passed in the negative--yeas 42, nays 62.
The question was then taken on the second resolution, for receding that
part of the district, excepting the city of Washington, formerly attached
to Maryland, and passed in the negative--yeas 42, nays 65.
The question was then taken by yeas and nays on agreeing to that part of
the report which involved a disagreement to the first resolution, and
carried affirmatively--yeas 87, nays 46, as follows:
YEAS.--Nathaniel Alexander, Simeon Baldwin, William Blackledge,
Adam Boyd, Robert Brown, Joseph Bryan, George W. Campbell, John
Campbell, Levi Casey, William Chamberlin, Martin Chittenden,
Clifton Claggett, Thomas Claiborne, John Clopton, Frederick
Conrad, Jacob Crowninshield, Manasseh Cutler, Richard Cutts,
John Davenport, John Dennis, William Dickson, Thomas Dwight,
John B. Earle, James Elliot, William Eustis, Calvin Goddard,
Andrew Gregg, Gaylord Griswold, Roger Griswold, Seth Hastings,
William Helms, David Holmes, David Hough, Benjamin Huger,
Samuel Hunt, John G. Jackson, William Kennedy, Joseph Lewis,
jun., Henry W. Livingston, Thomas Lowndes, John B. C. Lucas,
Matthew Lyon, William McCreery, Nahum Mitchell, Thomas Moore,
Roger Nelson, Anthony New, Thomas Newton, jun., Thomas Plater,
Samuel D. Purviance, Thomas Sammons, Thomas Sanford, John
Smith, Henry Southard, Joseph Stanton, William Stedman, James
Stephenson, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney,
David Thomas, Philip R. Thompson, Abram Trigg, Philip Van
Cortlandt, Isaac Van Horne, Peleg Wadsworth, Matthew Walton,
Lemuel Williams, Marmaduke Williams, Richard Wynn, Joseph
Winston, and Thomas Wynns.
NAYS.--Willis Alston, jun., Isaac Anderson, John Archer, George
Michael Bedinger, Phanuel Bishop, John Boyle, William Butler,
Christopher Clark, Matthew Clay, John Dawson, Peter Early,
Ebenezer Elmer, John W. Eppes, William Findlay, John Fowler,
Edwin Gray, John A. Hanna, Josiah Hasbrouck, Joseph Heister,
John Hoge, James Holland, Walter Jones, Simon Larned, Michael
Leib, Andrew McCord, David Meriwether, Nicholas R. Moore,
Jeremiah Morrow, James Mott, Gideon Olin, Beriah Palmer, John
Randolph, John Rea, of Pennsylvania, John Rhea, of Tennessee,
Jacob Richards, Samuel Riker, Erastus Root, Ebenezer Seaver,
James Sloan, John Smilie, Richard Stanford, John Stewart,
Joseph B. Varnum, Daniel C. Verplanck, John Whitehill, and
Alexander Wilson.
Mr. SMILIE moved to amend the second resolution by striking out the words
“without the limits of the city of Washington,” so that the city as well
as the other parts of the district might be receded.
Only twenty-one members rising in favor of this motion, it was lost.
The question was then taken by yeas and nays on agreeing to the report
of the committee, involving a disagreement to the second resolution, and
carried affirmatively--yeas 69, nays 39.
So the said motion was rejected.
The question was then taken on agreeing to the whole report of the
committee, and carried--yeas 50, nays 28.
SATURDAY, January 12.
_Resolved_, That the Speaker address a letter to the Executive of the
State of North Carolina, communicating information of the death of JAMES
GILLESPIE, late a member of this House, in order that measures may be
taken to supply any vacancy occasioned thereby in the Representation from
that State.
TUESDAY, January 15.
_District of Columbia._
The bill to prohibit the exaction of bail upon certain suits within the
District of Columbia was brought in engrossed, and read the third time.
The final passage of the bill was opposed by Mr. GODDARD, Mr. ROOT, and
Mr. NELSON, and defended by Mr. NEWTON, as a proper measure to prevent
the oppression of malignant creditors.
Mr. EPPES desired Mr. BECKLEY to read that part of the Constitution of
the United States relative to the extent of the Judiciary power, and
that part of the law establishing the Judicial authority of the District
of Columbia, with a view of showing that the bill was not essentially
necessary.
Mr. EARLY moved a recommitment of the bill to a select committee.
Mr. BEDINGER wished that the bill might go to a select committee, because
he considered the principle a valuable one. He imagined, however, that
the details were not altogether perfect. He felt concerned on this
subject, on account of several of his constituents who had been tricked
out of notes and bonds for lands in Kentucky, which had been advertised,
and were no longer available against the drawers in that State; but,
should it so happen that business called them to Washington, they might
be extremely harassed for want of bail.
The reference was opposed by Mr. R. GRISWOLD, as he was against the
principle of the bill altogether.
On the question to recommit it, it passed in the negative--ayes 44, noes
59.
The question was then taken on the passage of the bill, and it was lost,
there being but thirty members who voted in its favor.
WEDNESDAY, January 16.
_Naval Appropriations._
The House again resolved itself into a Committee of the Whole, on the
bill making appropriations for the support of Government for the year one
thousand eight hundred and five.
Mr. J. RANDOLPH moved to fill the blank, in the clause providing for the
expense of intercourse with the Barbary Powers, with $63,500, instead of
the sum of $113,000, stated in the estimate for the current year. The
difference ($50,000) would make a part of additional appropriations, for
which he should move a distinct clause.--Motion carried.
Mr. R. then moved to add the following words: “for the contingent
expenses of intercourse with the Barbary Powers ---- dollars.” He said,
that he should be obliged to ask $150,000, in addition to the sum
reserved out of the preceding appropriation, and of course to fill the
blank with the words $200,000. This was rendered necessary because the
Mediterranean fund, heretofore liable to this charge, had been subjected,
on the motion of a gentleman from Connecticut, to the whole expense
of the support of the Navy. He supposed that no difference of opinion
could exist on the subject of enabling the Executive to make peace with
Tripoli. He had no objection to any restriction which might be thought
necessary to limit the application of the additional sum of $150,000,
which he required, to the object for which it was intended. But as the
words ransom, or tribute, had never been introduced into our statutes
heretofore, he hoped they would not be admitted on this occasion.
Mr. R. GRISWOLD had no objection to making the appropriation required, or
even a larger sum; for he was well convinced that the President ought to
have funds as well as the authority to accomplish any object connected
with the present subject, which he might wish to accomplish.
FRIDAY, January 18.
_Relief of Tax Collectors in New York._
A petition of John York, of Brookefield, in the county of Chenango, and
State of New York, late collector of the taxes on lands, slaves, and
dwelling-houses, for the eighty-third collection district within the
said State, and now confined in the jail of said county, was presented
to the House and read, praying relief in the case of a judgment awarded
against the petitioner and execution issued thereon, for the sum of eight
hundred dollars, including interest and cost of suit, for the payment of
which the petitioner was compelled to apply a certain proportion of the
proceeds of taxes collected by him in the capacity aforesaid.--Referred
to Messrs. ROOT, GREGG, and HASTINGS; to examine and report their opinion
thereupon to the House.
_District of Columbia._
DIVORCES.
Mr. DAWSON, from the committee appointed on the petition of Marcella
Stanton, and others, reported a bill, entitled an act to authorize the
Court of the District of Columbia to decree divorces in certain cases;
which was read twice, and referred to a Committee of the Whole on Tuesday
next.
Mr. DAWSON prefaced his motion, on this subject, when he introduced it in
the manner following:
He observed that, after the decision which had taken place a few days
ago, he had resolved not to meddle any further with the affairs of the
District of Columbia, but to leave the inhabitants in the enjoyment of
the blessings of that government which they seem to have chosen, and the
principles of which were sanctioned by this House.
There was, however, one class of persons who claimed, in all situations,
our particular attention; who had not made a surrender of their political
rights; and, if they had been defrauded out of their natural ones, were
anxious to regain them.
It would be remembered that, at the last session, a gentleman from
Maryland, who had been absent for some time, and whom he rejoiced now to
see in his place, (Mr. NICHOLSON,) presented a petition from a person
in this district, praying for a divorce, and he two others for the same
relief. These were referred to a select committee, and a bill reported,
which remained among the unfinished business; as he learned that the
situations and wishes of these unfortunate persons were still the same,
he thought the subject ought again to be renewed.
_Emancipation in the District of Columbia._
Mr. SLOAN moved the following resolution:
_Resolved_, That, from and after the fourth of July, 1805,
all blacks and people of color that shall be born within the
District of Columbia, or whose mother shall be the property of
any person residing within the said district, shall be free,
the males at the age of ----, and the females at the age of
----.
The House proceeded to consider the said motion, and on the question that
the same be referred to a Committee of the whole House, it passed in the
negative--yeas 47, nays 65.
And then the main question being taken that the House do agree to the
said motion as originally proposed, it passed in the negative--yeas 31,
nays 77, as follows:
YEAS.--Isaac Anderson, John Archer, David Bard, Phanuel Bishop,
Robert Brown, Clifton Claggett, Joseph Clay, James Elliot,
Ebenezer Elmer, William Findlay, Gaylord Griswold, John A.
Hanna, Josiah Hasbrouck, David Hough, Nehemiah Knight, Michael
Leib, Andrew McCord, Nahum Mitchell, Beriah Palmer, John Rea
of Pennsylvania, Jacob Richards, Erastus Root, Thomas Sammons,
Ebenezer Seaver, James Sloan, John Smilie, Joseph Stanton,
Isaac Van Horne, Joseph B. Varnum, Peleg Wadsworth, and John
Whitehill.
NAYS.--Willis Alston, jr., Simeon Baldwin, George Michael
Bedinger, William Blackledge, Adam Boyd, Joseph Bryan, William
Butler, George W. Campbell, John Campbell, Levi Casey, Thomas
Claiborne, Matthew Clay, John Clopton, Frederick Conrad, Jacob
Crowninshield, Manasseh Cutler, John Davenport, John Dawson,
John Dennis, William Dickson, John B. Earle, Peter Early, John
W. Eppes, William Eustis, John Fowler, Calvin Goddard, Peterson
Goodwyn, Thomas Griffin, Roger Griswold, Joseph Heister,
William Helms, John Hoge, James Holland, Benjamin Huger, Samuel
Hunt, Walter Jones, William Kennedy, Simon Larned, Joseph
Lewis, jun., Henry W. Livingston, Thomas Lowndes, John B.
C. Lucas, Matthew Lyon, William McCreery, David Meriwether,
Nicholas R. Moore, Thomas Moore, James Mott, Roger Nelson,
Anthony New, Thomas Newton, jun., Joseph H. Nicholson, Gideon
Olin, John Randolph, John Rhea of Tennessee, Samuel Riker,
Thomas Sanford, John Smith, Henry Southard, Richard Stanford,
William Stedman, James Stephenson, John Stewart, Samuel
Taggart, Samuel Tenney, Philip R. Thompson, George Tibbits,
Abram Trigg, Philip Van Cortlandt, Killian K. Van Rensselaer,
Daniel C. Verplanck, Matthew Walton, Marmaduke Williams,
Alexander Wilson, Richard Wynn, Joseph Winston, and Thomas
Wynns.
So the said motion was rejected.
MONDAY, January 21.
_Slavery in Territories._
A memorial of the people called Quakers, at their yearly meeting, held in
the city of Philadelphia, in the month of December last, was presented
to the House and read, praying that effectual measures may be adopted
by Congress to prevent the introduction of slavery into any of the
Territories of the United States.--Referred to the committee appointed on
the twelfth of November last, on so much of the Message of the President
of the United States as relates “to an amelioration of the form of
government of the Territory of Louisiana.”
WEDNESDAY, January 23.
_Protection of Seamen._
The SPEAKER laid before the House a letter from the Secretary of State,
accompanying statements and abstracts relative “to the number of
American seamen who have been impressed or detained on board of the ships
of war of any foreign nation; with the names of the persons impressed;
the name of the ship or vessel by which they were impressed; the nation
to which she belonged, and the time of the impressment; as also certain
facts and circumstances relating to the same;” prepared in obedience to a
resolution of this House of the thirty-first ultimo.
Mr. CROWNINSHIELD said, that the list of impressed seamen, furnished by
the Secretary of State, exceeded in number any thing he had expected. He
thought these impressments ought to be prevented, and that the subject
demanded investigation. He had drafted a resolution, which he would
submit to the House, having in view to connect this with another very
important subject. Many gentlemen must have observed that some late
proclamations had been issued by the Governors of the several British
West India Islands, interdicting the American trade after May next. The
proclamations bore date in October or November, and were to take effect
in six months. It appeared to him that the British Government were
determined to exclude us from their islands, upon the expectation that
their own vessels would be competent to carry the necessary supplies.
Mr. C. said we had a right to carry the productions of the United States
in American bottoms, and he hoped we should never permit foreign ships
to come to our ports and carry on an exclusive trade with any country
whatever, where our vessels were not allowed the same privilege. His
intention was to prevent the American carrying trade to the West Indies
from falling into the hands of other nations. He would not exclude
foreign vessels from our ports, but it was desirable that our own export
trade should not be monopolized by foreigners. The subject was highly
important to this country. Will the United States tamely submit to see
some of its best citizens torn from their families and friends, without
attempting something for their relief? Shall we see another country
pursuing measures hostile to our commercial rights and make no effort
to correct the mischief? The West India Islands depended on the United
States for their ordinary supplies, and our vessels had usually carried
a large proportion of their cargoes on American account; but it appeared
now that we were to be shut out from this trade, and it was in future
to be carried on in foreign vessels. An effectual remedy would be to
prohibit the exportation of our productions in foreign bottoms to all
ports of islands with which we were not permitted to have intercourse,
and in order that the subject might undergo the examination which its
importance demanded, he offered the following resolution:
_Resolved_, That the Committee of Commerce and Manufactures
be instructed to inquire if any, and what, further provision
be necessary for the protection of the commerce and seamen of
the United States, and to inquire whether any foreign country
has made any late regulations with a view to monopolize any
branch of the American carrying trade, to the exclusive benefit
of such foreign country, or which in their operation may be
injurious to the agricultural or commercial interest of the
United States; and also to inquire into the expediency of
prohibiting the exportation from the United States of all goods
and merchandise whatever in foreign ships bound to any port
with which the vessels of the United States are not allowed
communication, or where a free and unrestricted trade is not
permitted in the productions of the United States, and that the
committee be authorized to report by bill or otherwise.
Mr. RANDOLPH wished the resolution to lie for consideration a few days;
he would mention Monday. The gentleman had said it was an important
subject, and if he had no objection it would be as well to allow the
resolution to remain unacted upon for a little time. It might be
printed for the consideration of the House, and he rather supposed some
alteration would be necessary in the form of the resolution.
Mr. CROWNINSHIELD replied that he was perfectly willing the resolution
should lie for consideration, agreeably to the desire of the gentleman
from Virginia, and he would consent to any reasonable delay; but he
would not consent to its remaining unacted upon till a period so late as
to preclude any measures from being adopted this session, because the
proclamation would take effect in the month of May. He was not tenacious
of forms, it was the substance of things he looked to, and he would with
great pleasure agree to modify the resolution to any shape which the
gentleman from Virginia might suggest.
A motion was made to refer the resolution to a Committee of the Whole
for Monday next; which was agreed to, and the resolution ordered to be
printed.
THURSDAY, January 24.
The SPEAKER laid before the House a letter from the Secretary of War,
enclosing sundry documents relating to the case of William Scott, and
James and John Pettigrew, stated to have been murdered and plundered by
the Cherokee Indians, in pursuance of a resolution of this House of the
twenty-second instant; which were read and referred to the Committee of
the Whole, to whom is committed the report of the Committee of Claims
on the petition of Alexander Scott, of the State of South Carolina, in
behalf of himself and others.
_Navy Yards, &c._
Mr. EUSTIS moved the following resolution:
“_Resolved_, That it is expedient to provide by law for
defraying the expense incident to fitting and preparing one of
the navy yards belonging to the United States, and lying near
the margin of the ocean, for the reception and repairing of
such ships of war as are now at sea on their return to port,
and such other ships or vessels of war as may hereafter return
from their cruises or stations.”
Mr. EUSTIS said the resolution now submitted to the consideration of
the House had grown out of an opinion which impressed itself on his
mind, when he first beheld the whole naval force of the United States
moored in the Eastern branch of the Potomac. He had ever considered
the establishment of a navy yard in this city, as the principal naval
arsenal, to be among the errors or misfortunes which had presided over
many other arrangements respecting this city and territory. As the
United States were at that time at peace with all the world, excepting
the Dey of Algiers, as a small part of the force only was necessary to
carry on this warfare, and as the ships had been actually hauled up at
a considerable expense, there appeared to be no immediate necessity for
incurring a further expense in their removal. Our maritime concerns have
now experienced a change. We are at war with another of the Barbary
Powers, and a greater number of ships have been necessarily taken into
the service. We have at this time six frigates, and five or six smaller
vessels on duty in the Mediterranean. After a certain time these ships
must be relieved. Others must be sent out to take their stations. Those
which return will require repairs; and in order to prepare for these
contingencies it was proper that some one of the navy yards nearer to the
ocean should be put in a condition to receive them. This was the object
of the resolution. It was desirable that some place should be selected
easy of access, where the water was deep, and in the neighborhood of some
large maritime town, having large markets and magazines of the variety
of articles required for repairing and fitting ships for sea, with the
artizans employed in that business. It was not his intention to describe
the advantages or disadvantages of one place or of another. The United
States own six navy yards. The whole coast is before the Executive, and
such a place will be selected as will combine the greatest number of
advantages and best promote the public interests. To those who believed
that ships of war could be repaired or fitted out with the same despatch,
at the same expense, and with the same ease and convenience, at a place
three hundred miles distant from the sea, as they could be in one of the
ports lying on its margin, and possessing the advantages which had been
stated, no reasoning could be applied which would change their opinions.
The proposition was offered to the House to be decided by common sense
and understanding. There was one objection which he had anticipated, and
which had some weight in it. The business of the department would in
that case be removed from the eye of the Government, and from the more
immediate inspection and control of the intelligent and capable officer
who directed its operations; this inconvenience would be balanced by the
more ample means and resources which his agents would find in the large
towns, and by which they would be enabled to carry his instructions more
promptly into effect.
The motion was referred to a Committee of the Whole on Monday next.
FRIDAY, January 25.
_Mississippi Territory._
Mr. LATTIMORE presented a memorial from the Legislative Council and the
House of Representatives of the Mississippi Territory, stating sundry
grievances to which they were exposed by the act of Congress for the
government of the same. They complain that a man is not qualified to
vote unless he possess fifty acres of land, whereby those who hold
houses and town lots, as well as respectable citizens of considerable
personal estate, are disfranchised. The inequality of representation in
the several counties to the number of inhabitants in each; the necessity
of extending the powers and authorities of an additional judge lately
furnished the Territory; the inconveniencies arising from the prescribed
mode of the disposal of lands; the necessity of establishing a hospital
at the Natchez; and, lastly, an increase of the salaries of the judges.
On motion, the memorial was referred to a select committee of five
members.
TUESDAY, January 29.
Another member, to wit, OLIVER PHELPS, from New York, appeared, and took
his seat in the House.
_Georgia Claims._
The House again went into Committee of the Whole on the Georgia claims.
After reading over the report of the Committee of Claims, which concludes
with submitting the following resolution:
_Resolved_, That three Commissioners be authorized to receive
propositions of compromise and settlement, from the several
companies or persons having claims to public lands within the
present limits of the Mississippi Territory, and finally to
adjust and settle the same in such manner as in their opinion
will conduce to the interest of the United States: _Provided_,
That in such settlement the Commissioners shall not exceed the
limits prescribed by the convention with the State of Georgia.
Mr. DANA moved that the committee rise and report the resolution.
Mr. J. RANDOLPH wished, before the committee rose, that the gentleman
from Connecticut (Mr. DANA) would assign some reasons for the adoption of
the resolution. No two things could be more opposite than the prefatory
statement made by the Committee of Claims and the resolution which
terminated the report. As there were no reasons assigned, he suspected
the gentleman had kept them back with a view of surprising the House by
their novelty; but he hoped the committee would not agree to the motion,
unless some better cause was assigned for its adoption than had hitherto
been made known.
Mr. DANA said the Committee of Claims, in the report now before the
Committee of the Whole, had confined themselves to a statement of facts
derived from the documents referred to them. He conceived it to be the
business of the Committee of Claims to investigate the facts, and arrange
them in such a manner as to free the House from the labor of detail; they
had done this, and the report was a summary of all that passed in review
before them. It was left to gentlemen to reason on the case according to
their course of reflection. Whether the committee reasoned on the subject
well or ill, he did not know that gentlemen were bound to follow them in
their conclusion. Indeed, he apprehended that were the reasoning ever
so energetic, it would not go to satisfy every gentleman. On a question
like the present, he despaired of making it satisfactory to the gentleman
who had asked for reasons. He was persuaded that gentleman could not be
convinced by any argument the committee might have used, and it was idle
to call upon them to perform impossibilities.
The question on the committee’s rising and reporting their agreement to
the resolution was put, and carried--yeas 61, nays 50.
The SPEAKER having resumed the chair, Mr. VARNUM reported the foregoing
resolution as agreed to.
Mr. BRYAN called for the reading of that rule of the House which
restrains interested persons from voting.
The Clerk read the same, as follows:
“No member shall vote on any question in the event of which he
is immediately and particularly interested; or in any other
case where he was not present when the question was put.”
A motion was made to consider the report of the Committee of the Whole,
and carried--yeas 64, nays 51.
Mr. CLARK moved a proviso as an amendment, declaring that no part of the
five millions of acres reserved should go to compensate the claimants
under the act of Georgia, passed in 1795.
Mr. J. RANDOLPH called the yeas and nays on the amendment.
Mr. DANA observed that the report on the table had been made on the
application of persons claiming land under the act of 1795. The
amendment, said he, is nothing more nor less than a denial to comply with
the prayer of the petitioners, and whether it was not to all intents and
purposes a substitute for the resolutions agreed to in the Committee of
the Whole, he would leave to the Speaker. If it were decided to be a
substitute, it could not be received, conformably to the rules of the
House.
The SPEAKER said, the resolution reported from the Committee of the Whole
was a general one, including all claims; the amendment went to limit
and confine the resolution to a particular class, and, therefore, he
conceived it to be in order.
Mr. J. RANDOLPH.--It must be manifest to the House that this discussion
is forced upon those who are opposed to the report of the committee; that
we are not prepared at this time to meet it. I am among those who hoped
that some reasons would be assigned, if indeed reasons can be found,
to warrant the step about to be taken. I did hope that, instead of a
string of facts and statements which were already before the House, the
committee would have given us something new in the shape of argument,
justificatory of the resolution which they have recommended. But I have
been disappointed. Nothing is offered either in the report itself, or in
the debate, which throws a single gleam of light on the subject. I have
particular reasons to deprecate a discussion at this time. I shall not
trouble the House by detailing them, but briefly state that I feel myself
unequal to an immediate investigation of this question, as well from
personal indisposition as from the pressure of other important business,
which has left me but little leisure to attend to this. The few moments
which I have been able to devote to it, have convinced me that much new
and important matter remains to be brought to light. But no apology will
be received: we are driven to a vote by an inflexible majority.
The objection taken by the gentleman from Connecticut, (Mr. DANA,)
and the doubt which he raised on that point of order, respecting the
amendment offered by my worthy colleague, (Mr. CLARK,) discloses his
drift, and that of the Committee of Claims, whilst it proves the
necessity of some such amendment to save citizens of the United States
and their property from spoliation and plunder. The gentleman has stated
truly that his object was to further the claim of the New England
Mississippi Land Company. As I fear I shall have full occasion to exert
my voice, I must beg that the memorial of the agents of that company may
be read by the Clerk.
Mr. J. RANDOLPH then called for the reading of the act of Georgia of
February, 1796, generally called the rescinding act; and he hoped they
would have silence whilst the act was reading, as it was a very important
one, and ought to influence the decision on the present subject.
The act was read in compliance with the request.
After it was finished, Mr. CLARK moved to adjourn.
On the division, there were 52 yeas, and 55 nays. So the motion was lost.
Mr. CLARK requested that the act of 1795, under which they derived their
pretended titles, might be read.
Whilst the SPEAKER was reading the same, Mr. DANA rose and inquired
whether it was necessary to read the whole of the law, or whether
gentlemen would not be satisfied with the reading of such part of it as
bore upon the present question.
Mr. J. RANDOLPH called the gentleman to order for interrupting the
Speaker in his reading.
Mr. SPEAKER.--The objection ought to have been made (if at all) when the
reading of the law was first called for.
The reading was continued to the end of the act--when,
Mr. J. CLAY moved that the House adjourn.
On a division, there were 53 yeas, and 60 nays. Motion lost.
Mr. J. RANDOLPH.--Perhaps it may be supposed, from the course which this
business has taken, that the adversaries of the present measure indulge
the expectation of being able to come forward, at a future day--not
to this House, for that hope is desperate, but to the public, with a
more matured opposition than it is in their power now to make. But past
experience has shown them that this is one of those subjects which
pollution has sanctified; that the hallowed mysteries of corruption are
not to be profaned by the eye of public curiosity. No, sir, the orgies
of Yazoo speculation are not to be laid open to the vulgar gaze. None
but the initiated are permitted to behold the monstrous sacrifice of
the best interests of the nation on the altars of corruption. When this
abomination is to be practised we go into conclave. Do we apply to the
press--that potent engine, the dread of tyrants and of villains, but the
shield of freedom and of worth? No, sir, the press is gagged. On this
subject we have a virtual sedition law--not with a specious title, but
irresistible in its operation, which, in the language of a gentleman
from Connecticut, (Mr. GRISWOLD,) goes directly to its object. The demon
of speculation, at one sweep, has wrested from the nation their best,
their only defence, and closed every avenue of information. But a day of
retribution may yet come. If their rights are to be bartered away and
their property squandered, the people must not, they shall not be kept in
ignorance by whom, or for whom it is done.
We have often heard of party spirit--of caucuses as they are termed--to
settle legislative questions, but never have I seen that spirit so
visible as at this time. The out-of-door intrigue is too palpable to be
disguised. When it was proposed to abolish a judiciary system reared in
the last moments of an expiring Administration, the detested offspring of
a midnight hour--when the question of repeal was before this House, it
could not be taken up until midnight, in the third or fourth week of the
discussion. When the great and good man who now fills, and who (whatever
may be the wishes of our opponents) I hope and trust will long fill the
Executive chair, not less to his own honor than to the happiness of his
fellow-citizens; when he, sir, recommended the repeal of the internal
taxes, delay succeeded delay, and discussion was followed by discussion,
until patience itself was worn threadbare. But now, when public plunder
is the order of the day, how are we treated? Driven into the Committee of
the Whole, and out again in a breath, by an inflexible majority, exulting
and stubborn in their strength, a decision must be had instanter. The
advocates for the proposed measure feel that it will not bear a scrutiny.
Hence this precipitancy. They wince from the touch of examination, and
are willing to hurry through a painful and disgraceful discussion. But,
it may be asked, why this tenacious adherence of certain gentlemen to
each other on every other point connected with this subject? As if
animated by one spirit, they perform all their evolutions with the most
exact discipline, and march in a firm phalanx directly up to their
object. Is it that men combined to effect some evil purpose, acting on
previous pledge to each other, are ever more in unison than those who,
seeking only to discover truth, obey the impulse of that conscience which
God has placed in their bosoms? Such men do not stand compromitted. They
will not stifle the suggestions of their own minds, and sacrifice their
private opinions to the attainment of some common, perhaps some nefarious
object.
Having given vent to that effusion of indignation which I feel, and which
I trust I shall never fail to feel and to express on this detestable
subject, permit me now to offer some crude and hasty remarks on the
point in dispute. They will be directed chiefly to the claim of the New
England Mississippi Land Company, whom we propose to debar (with all
the other claimants under the act of 1795) from any benefit of the five
millions of acres, reserved by our compact with Georgia, to satisfy such
claims not specially provided for in that compact, as we might find
worthy of recompense. I shall direct my observations more particularly to
this claim, because it has been more insisted upon, and more zealously
defended than any other. It is alleged by the memorialists, who style
themselves the agents of that company, that they, and those whom they
represent, were innocent purchasers; in other words, ignorant of the
corruption and fraud by which the act from which their pretended title
was derived, was passed. I am well aware that this fact is not material
to the question of any legal or equitable title which they may set up;
but as it has been made a pretext for exciting the compassion of the
Legislature, I wish to examine into the ground upon which this allegation
rests. Sir, when that act of stupendous villany was passed in 1795,
attempting under the forms and semblance of law to rob unborn millions of
their birthright and inheritance, and to convey to a band of unprincipled
and flagitious men a territory more extensive, and beyond comparison more
fertile than any State of this Union, it caused a sensation scarcely
less violent than that produced by the passage of the stamp act, or the
shutting up of the port at Boston, with this difference: when the port
bill of Boston passed, her Southern brethren did not take advantage of
the forms of law, by which a corrupt Legislature attempted to defraud
her of the bounty of nature; they did not speculate on the necessities
and wrongs of their abused and insulted countrymen. I repeat that this
infamous act was succeeded by a general burst of indignation throughout
the continent. This is matter of public notoriety, and those--I speak
of men of education and intelligence, purchasers, too, of the very
country in question--those who affect to have been ignorant of any
such circumstance, I shall consider as guilty of gross and wilful
prevarication. They offer indeed to virtue the only homage which she is
ever likely to receive at their hands--the homage of their hypocrisy.
They could not make an assertion within the limits of possibility less
entitled to credit.
The agents of the New England Land Company are unfortunate in two points.
They set out with a formal endeavor to prove that they are entitled to
their proportion of fifty millions of acres of land, under the law of
1795, and this they make their plea to be admitted to a proportional
share of five. If they really believed what they say, would they be
willing to commute a good legal, or equitable claim, for one tenth of
its value? Their memorial contains, moreover, a suggestion of falsehood.
They aver that the reservation of five millions for satisfying claims
not otherwise provided for, in our compact with Georgia, was especially
intended for the benefit of the claimants under the act of 1795, and
that we were pledged to satisfy them out of that reservation. Now, sir,
turn to the sixth volume of your laws, and what is the fact? In the
first place, so much of the reserved five millions as may be necessary,
is appropriated specifically for satisfying claims derived from British
grants not regranted by Spain; and as much of the residue as may be
necessary is appropriated for compensating other claims, not recognized
in our compact with Georgia. An appropriation for certain British grants
specially, and for other claims generally, is falsely suggested to have
been made for the especial benefit of the claimants of 1795; and the
reservation of a power in the United States to quiet such claims as they
should deem worthy of compensation, is perverted into an obligation to
compensate a particular class of claims; into an acknowledgment that
such claims are worthy of compensation. Can this House be inveigled by
such barefaced effrontery? Sir, the act containing this appropriation
clause was not brought to a third reading till the first of March.
Our powers expired on the fourth: it was at the second session of the
seventh Congress. It was in the power of those opposed to the corrupt
claims of 1795 to have defeated the bill by a discussion. But, sir, they
abstained on this ground. If the appropriation of the five millions had
not been made at that session, the year within which, by our agreement
with Georgia, it was to be made, if at all, would have expired before
the meeting of the next Congress; and it was urged, by the friends of
the bill, that there were several descriptions of claims to which no
imputation of fraud could attach; that by making a general appropriation
we secured to ourselves the power of recompensing such claims as, on
examination, might be found worthy of it, whilst we pledged ourselves
to no class of claimants whatever. But that if we should suffer the
term specified, in our compact with Georgia, to elapse without making
any appropriation, we should preclude ourselves from the ability to
compensate any claims, not specially provided for, however just and
reasonable we might find them, on investigation, to be. Under these
circumstances, and I appeal to my excellent friend from Maryland, who
brought it in, for the correctness of my statement, the opponents of the
bill gave it no other opposition than a silent vote. And now, sir, we are
told that we stand pledged, and that an appropriation for British grants
not regranted by Spain, specially, and for such other claims against the
State of Georgia, generally, as Congress should find quite worthy, was
made for the especial benefit of a particular description of claimants,
branded, too, with the deepest odium; who dare to talk to us of public
faith, and appeal to the national honor!
The conclusion of the memorial is amusing enough. After having played
over the farce, which was acted by the Yazoo Squad at the last session,
affecting to believe that an appropriation has been made by the act
of March 1803, for their especial benefit, they pray that Congress
will be pleased to give them--what? that to which they assert they are
entitled?--by no means--an eighth or tenth part of it--which said eighth
or tenth part, if we may credit them, has been already appropriated to
their use by law. From a knowledge of the memorialists, and those whom
they represent, can you believe for a moment that, if they had the least
faith in the volume of argument (I am sorry to profane the word) which
they presented to the House to prove the goodness of their title, can you
believe that under such impression they would accept a paltry compromise
of two shillings in the pound--much less that, to obtain it, they would
descend so low! Sir, when these men talk about public faith and national
honor, they remind me of the appeals of the unprincipled gamester and
veteran usurer to the honor of the thoughtless spendthrift, whilst in
reality they are addressing themselves to his vices and his folly.
The first year that I had the honor of a seat in this House, an act was
passed of a nature not altogether unlike the one now proposed. I allude
to the case of the Connecticut Reserve, by which the nation were swindled
out of some three or four millions of acres of land, which, like other
bad titles, had fallen into the hands of innocent purchasers. When I
advert to the applicants by whom we were then beset, I find that among
them was one of the very persons who style themselves agents of the New
England Mississippi Land Company, who seems to have an unfortunate knack
at buying bad titles. His gigantic grasp embraces with one hand the
shores of Lake Erie, and stretches with the other to the Bay of Mobile.
Millions of acres are easily digested by such stomachs. Goaded by
avarice, they buy only to sell, and sell only to buy. The retail trade of
fraud and imposture yields too small and slow a profit to gratify their
cupidity. They buy and sell corruption in the gross, and a few millions,
more or less, is hardly felt in the account. The deeper the play, the
greater their zest for the game, and the stake which is set upon their
throw is nothing less than the patrimony of the people. Mr. Speaker, when
I see the agency that has been employed on this occasion, I must own that
it fills me with apprehension and alarm. This same agent is at the head
of an executive department of our Government, subordinate indeed in rank
and dignity, and in the ability required for its superintendence, but
inferior to none in the influence attached to it. This officer, possessed
of how many snug appointments and fat contracts, let the voluminous
records on your table of the mere names and dates and sums declare;
having an influence which is confined to no quarter of the country, but
pervading every part of the Union; with offices in his gift amongst the
most lucrative, and at the same time the least laborious, or responsible,
under the Government, so tempting as to draw a member of the other House
from his seat, and place him as a deputy at the feet of your applicant;
this officer presents himself at your bar, at once a party and an
advocate. Sir, when I see this tremendous patronage brought to bear upon
us, I do confess that it strikes me with consternation and dismay. Is it
come to this? Are heads of executive departments of the Government to be
brought into this House, with all the influence and patronage attached
to them, to extort from us now, what was refused at the last session of
Congress? I hope not, sir. But if they are, and if the abominable villany
practised upon, and by the Legislature of Georgia, in 1795, is now to be
glossed over, I for one will ask what security they, by whom it shall
be done, can offer for their reputations, better than can be given for
the character of that Legislature? I will pin myself upon this text, and
preach upon it as long as I have life. If no other reason can be adduced
but a regard for our own fame, if it were only to rescue ourselves from
this foul imputation, this weak and dishonorable compromise ought to
receive a prompt and decisive rejection. Is the voice of patriotism
lulled to rest, that we no longer hear the cry against an overbearing
majority, determined to put down the constitution, and deaf to every
proposition of compromise? Such were the dire forebodings to which we
have been heretofore compelled to listen. But if the enmity of such
men be formidable, their friendship is deadly destruction, their touch
pollution.
Such men, I repeat it, are formidable as enemies, but their friendship
is fraught with irresistible death. I fear indeed the “_Danaos et dona
ferentes_.” But, after the law in question shall have passed, what
security have you that the claimants will accede to your terms of
compromise? that this is not a trap, to obtain from Congress something
like a recognition of their title, to be hereafter used against us? Sir,
with all our wisdom, I seriously doubt our ability to contend with the
arts and designs of these claimants, if they can once entangle us in the
net of our own legislation. Let the act of March, 1801, of which already
they have made so dexterous a use, be remembered. They themselves have
pointed out the course which we ought to pursue. They have told us, that
so long as we refrain from legislating on this subject, their case is
hopeless. Let us then persevere in a “wise and masterly inactivity.”[23]
The committee rose, and had leave to sit again, and the House adjourned.
WEDNESDAY, January 30.
On motion, it was
_Resolved_, That the President of the United States be requested to
inform this House whether SAMUEL HAMMOND, a member of this House, has not
accepted of an Executive appointment, and when?
_Ordered_, That Mr. BRYAN and Mr. EPPES be appointed a committee to
present the foregoing resolution to the President of the United States.
_Georgia Claims._
The House resumed the consideration of the resolution reported yesterday
from the Committee of the Whole on the Georgia Claims.
Mr. ELLIOT.--It cannot but be considered as a very fortunate
circumstance, and one which cannot fail to have a favorable influence
upon the final decision of this important question, that, since the
delivery of the animated observations which yesterday so powerfully
attracted the attention of the House, we have been afforded a few hours
of tranquil retirement from the tempest of the forum, for the purpose,
useful at all times, and peculiarly so at the present time, of calm
reflection. To transfer ourselves in a moment from the flowery fields
of fancy, to the rugged road of argument, to descend instantaneously
from the elevated scenes of eloquence to the humble walks of common
sense, requires an effort transcending ordinary powers. In claiming your
attention, Mr. Speaker, for a greater portion of the day than I commonly
occupy in debate upon this floor, I shall not address you in the style
of compliment or ceremony. It is time to banish from these walls that
idle frippery of ceremonious conversation, which is suited only to a
new year’s compliment, or a birthday salutation, and to catch a little
of the sturdy spirit of antiquity. A bold, a loud, an impressive appeal
is made to the American people. In that appeal I fearlessly and most
cordially unite. I regret, however, the existence of a precedent which
at once justifies and demands these addresses to the people. Much as I
wish to disseminate correct information, particularly on a subject which
I believe is but imperfectly understood without these walls, except by
interested persons, and convinced as I am that the subject is understood,
and an opinion formed upon it, by every member of this House, I shall not
so completely follow the example before us as to speak to the people in
the first instance, but shall, as usual, direct my observations to the
House.
I propose to examine, in a concise, and if it be in my power, in an
argumentative manner, the following questions, which have a direct
application to the amendment proposed by the gentleman from Virginia (Mr.
CLARK) to the resolution under consideration, and which, at the same
time, open to view the whole extent of the subject:
Did the State of Georgia, in the year 1795, possess a title to the
territory in question?
Were the Legislature of Georgia, in 1795, invested with the
constitutional power of making a sale of the territory, and did they make
such sale to those from whom the present claimants derive their title or
pretended title? And if such sale was made, what title or color of title
did it convey?
Were the members of the Legislature of Georgia, in 1796, invested with
the constitutional power of rescinding the acts of their predecessors in
relation to such sale, and did they rescind them?
Were the claims or pretended claims of the present claimants in any
manner recognized by the act of cession of the territory in question from
Georgia to the United States? And,
Do justice and policy, or either justice or policy, require that the
whole or any part of the five millions of acres, reserved by the act of
cession from Georgia to the United States, for the purpose of satisfying
claims of a certain description against Georgia, in reference to the
said territory, should be appropriated for the purpose of satisfying the
claims of the present claimants?
However extensive the outline which I have sketched of the subject, the
survey will be a rapid one.
It is necessary that I should make one or two preliminary observations. I
have uniformly been opposed to the doctrine which has been so powerfully
advocated, that Congress is competent to make a legislative decision
upon the validity or invalidity of the conflicting acts of Georgia. We
possess no such powers. But as individuals we may express our opinions.
Nor am I disposed to do any thing which shall have a tendency to impugn
the title of the United States to this territory. Without deciding the
question of title, my principal object is to show that the claimants are
in possession of so strong a color of title, that it will be good policy
to authorize a negotiation with them for the abandonment of their claim,
especially as we have a prospect of obtaining that abandonment on their
part, without going beyond the reservation in the act of cession, and
of course without the actual expense of a single dollar to the United
States.
Did the State of Georgia, in the year 1795, possess a title to the
territory in question?
To answer this inquiry, it is only necessary to make one or two
quotations from the articles of agreement and cession, entered into on
the 24th of April, 1802, between the Commissioners of the United States
and those of Georgia. In the first article, “the State of Georgia cedes
to the United States all the right, title, and claim, which the said
State has to the jurisdiction and soil of the lands situated within
the boundaries of the United States south of the State of Tennessee,”
&c. By the second article, “The United States accept the cession above
mentioned, and on the condition therein expressed; and they cede to the
State of Georgia whatever claim, right, or title, they may have to the
jurisdiction or soil of any lands lying within the United States, and out
of the proper boundaries of any other State, and situated south of the
southern boundaries of the States of Tennessee, North Carolina, and east
of the boundary line herein above described, at the eastern boundary of
the territory ceded by Georgia to the United States.” Whatever claim or
title the United States might previously have had to the territory, they
thought proper, in 1802, to combine with it, and to fortify it, by that
of Georgia; and surely we shall not do any act, or adopt any principle,
tending to impair the title under which we now exercise jurisdiction over
the territory.
Were the Legislature of Georgia, in 1795, invested with the
constitutional power of making a sale of the territory, and did they make
such sale to those from whom the present claimants derive their title or
pretended title? And if such sale was made, what title or color of title
did it convey?
In this age of political revolution and reformation, for I consider it
an age of reformation as well as revolution, there are still certain
principles and maxims, not merely venerable for their antiquity,
but consecrated by their conformity to the common sense and reason
of mankind, which are considered as universal in their application,
and irresistible in their influence. Among these may be numbered the
principles which attach to the government of every regularly-organized
community; the power of pledging the public faith, and that of alienating
the right of soil of the vacant territory of the nation. In every free
government, there must exist the power of legislation, or of making
laws; a distinct power, charged with the execution of the laws, and a
judicial power. The union of these different powers in the same man or
body of men, is the very essence of despotism. Thus in France, prior to
the Revolution, it was a fundamental maxim of State that the King was
the Legislator of the French Monarchy; and the power exercised in some
instances by certain parliaments, of refusing to register the edicts of
the monarch, however in practice it might operate as an obstruction
to legislation, was in theory only a matter of form, or at most but a
temporary check upon the executive power. In oligarchies the legislative
power is vested in the rich and noble; and in aristocracies, in a few
individuals who are presumed to be the wisest and the best in the
community. In governments of the democratic form, this power resides in
the great body of the people, and is exercised by themselves or their
representatives. The base of the temple of American liberty is democracy,
or the sovereignty of the people; representation and confederation
are the principal pillars which support the great superstructure. As
the State governments are unquestionably representative democracies,
the General Government is a representative federal republic. In every
government of the representative form, the representatives of the people
are vested with power to pledge the public faith, and to alienate the
vacant territory of the nation. Were the members of the Legislature of
Georgia, in 1795, invested with this authority? Certainly it was within
the sphere of those constitutional rights and powers, which had never
been surrendered to the General Government. We have since recognized that
authority by receiving a solemn deed of cession of the territory from a
subsequent Legislature of Georgia, transferring to us not only the soil,
but the right of jurisdiction. Was this authority exercised in 1795? In
the act of the Legislature of that State of the 7th of January in that
year, granting this territory to those from whom the present claimants
derive their claims, certain lands are described, and it is enacted
that those lands shall be sold to such and such persons, as tenants in
common, and not as joint tenants. The land shall be sold, or, in other
words, the right of soil shall be alienated. A proper distinction is
taken between the _dominium utile_ and the _dominium directum_ of the
civilians. No transfer was made of the right of jurisdiction, although
such imaginary transfer forms a prominent article in the reasons assigned
by the Legislature of 1796 for passing the rescinding act. From this view
of the subject, whatever may be the present state of the question of
legal title, who can doubt that the present claimants, honest purchasers
from the original grantees, upon the faith of an independent State, and
innocent of fraud, if fraud existed, possess such a color of title, such
an equitable claim, as to render it prudent and politic to enter into a
compromise with them upon reasonable terms?
Were the members of the Legislature of Georgia, in 1796, invested with
the constitutional power of rescinding the acts of their predecessors in
relation to such sale, and did they rescind them?
Congress is incompetent to the decision of this question. Nor is such
decision necessary. I will, however, make one or two inquiries, and state
one or two principles, which are applicable to the subject, which at the
same time will go to strengthen the ground I have taken as to color of
title in the claimants, and the policy of extinguishing their claims.
Can a legislature rescind a contract made by its predecessors?
Writers on national law make a distinction between laws which operate in
the nature of contracts, and those which have no such operation. Every
enlightened and reasonable man will subscribe to the opinion that a
pledge of the public faith, given by the competent authority, ought to be
irrevocable. Laws which pledge the faith of the community, which create
contracts, which vest rights in individuals or in corporate bodies, it
may safely be assumed as a general principle, are irrepealable. Laws of
merely municipal operation are alterable or repealable at the pleasure of
the existing legislature.
Can the judicial power declare a legislative act void, as having been
passed by means of corruption?
Different opinions have existed in our country as to the right claimed
by the judiciary, of deciding upon the constitutionality of laws. The
better opinion seems to be, that from the nature of our Government, and
the very terms of the constitution itself, by which that instrument is
declared to be the supreme law of the land, the judges not only ought
to exercise that power, but that they cannot avoid its exercise. If I
am not mistaken, some gentlemen, who deny that the judges possess this
right, are prepared to invest them with the more dangerous one of setting
aside a legislative act on the ground of corruption. To admit that the
judiciary may examine into the motives of the Legislature in passing
laws, or that they may receive and decide upon evidence tending to prove
corruption in the legislative body, would certainly be going much further
than those have gone who have claimed for that department the right of
deciding upon the constitutionality of laws. Suppose a trial of title
between a person claiming under the act of Georgia, of 1795, and another
claiming under the United States, and suppose evidence offered to the
Court to prove the corruption of the Legislature of Georgia, in what a
peculiar situation the judges would be placed? And would they listen
for a moment to an application for the admission of such evidence? It
may well be doubted. Do not then the present claimants possess a very
strong color of title? Is it not prudent to extinguish claims of this
description?
Were claims, or the pretended claims of the present claimants, in any
manner recognized by the act of cession of the territory in question from
Georgia to the United States? And,
Do justice and policy, or either justice or policy, require that the
whole or any part of the five millions of acres, reserved by the act of
cession from Georgia to the United States, for the purpose of satisfying
claims of a certain description against Georgia, in reference to the said
territory, should be appropriated for the purpose of satisfying the
claims of the present claimants?
I have anticipated the principal arguments in favor of the equity of
the claims, and the policy of a compromise with the claimants. The
memorialists state that their claims were particularly contemplated
by the Commissioners, both of the United States and of Georgia. They
have offered us no evidence of this fact, and we are not to take it for
granted. Indeed, I am far from thinking it my duty either to advocate or
answer the pamphlet of the memorialists, and I shall make but this single
allusion to it. Whatever may be its merits, it has had no influence upon
my mind in forming my opinion. An examination of the official documents
upon our tables will evince, however, that by a very strong implication,
if not by express provision, these claims have been recognized, both by
the act of cession, and by the law of Congress passed in consequence.
The gentleman from Virginia has expressed his surprise that the Chairman
of the Committee of Claims had contented himself with reporting facts and
principles, and that he has not adopted the novel procedure of reporting
something tantamount to an elaborate speech in favor of the claims. As
the speech of the gentleman from Virginia is unfortunately destitute
of argument against the claims, and as it might be possible to deduce
from it reasons in their favor, it might perhaps be proper for him to
print it and annex it to the report, as a substitute for that which he
thinks the chairman ought to have subjoined for the edification of the
House. My feeble optics have been able to discover but one attempt at
argument, which is in those observations which relate to the Message of
the President, and the proceedings of Congress, on the act of Georgia,
in 1795, and which, it is contended, were notice, to purchasers and
to the world, of fraud. At that time, it was not suspected that fraud
had been committed, and the reason for those proceedings was, that the
United States possessed, or were supposed to possess, certain claims
to the territory. There are certain subtile, sublimated, ethereal,
heaven-descended geniuses, the soft and silken texture of whose minds
would suffer infinite discomposure from the contact of that rude and
knotty thing--an argument. That gentleman is not of this description. Too
often have we witnessed his argumentative powers to entertain this idea.
I regret that he has declaimed instead of reasoning upon this occasion,
as I believe that argument, particularly upon important subjects, is
more useful than mere declamation. From motives which I cannot develope,
for I ascribe improper views to no one, the present is attempted to be
made a party question. The people are told that the Capitol has become
a scene of political and private iniquity, of fraud and federalism;
that the majority, of their Representatives are committing a stupendous
robbery upon the public patrimony, and their indignation is invoked
upon the plunderers. What facts exist to justify these denunciations?
Are we about to barter away the rights and interests of the people? Are
we about to be guilty of a wanton waste of the public property? Are
we guilty of political apostasy? No such thing. We are about to make
arrangements for carrying into effect a solemn stipulation in the treaty
with Georgia, and a solemn act of our predecessors, by devoting a part
of the five millions of acres, specially reserved for that purpose, for
which the United States never paid a cent, and never will pay a cent, to
the extinguishment of the colorable claims of equitable claimants. Yet
we are told that this act of equity, good faith, and good policy, is a
stupendous crime, compared with which the flagitious acts of the former
“unprincipled administration” dwindle into “petty larcenies.” I am a
republican--a democratic republican. I was opposed to the general system
of that administration. But I do not think it magnanimous, or honorable,
malignantly to triumph over fallen foes. Nor do I dread the union of
honest men. It can be dreadful only to the dishonest.
It is said that the circumstance that one of the great officers of
the Government is numbered among the claimants, ought to scatter
consternation through this House. It is unnecessary for me to undertake
a vindication of the character of that gentleman. Does his office divest
him of the common rights of a citizen? Does it deprive him of the right
of petitioning the National Legislature? But his contracts are resorted
to for the purpose of proving that he has extended his official influence
within our walls. Unfortunate, indeed, is the application of this
argument. By the report upon the table, it appears that three members are
contractors, and we all see that two of them are opposed to the present
claims.
Believing, Mr. Speaker, that this act of enormous robbery, this wanton
dissipation of the public treasure, this abominable league between
corruption and federalism, of which we hear so much, is neither more nor
less than an act of just national policy; believing with the Secretary of
State, the Secretary of the Treasury, and the late Attorney-General, that
“the interest of the United States, the tranquillity of those who may
hereafter inhabit that territory, and various equitable considerations,
which may be urged in favor of most of the present claimants, render it
expedient to enter into a compromise on reasonable terms;” and believing
that this compromise ought to be delayed no longer, I shall give a
decided vote in opposition to the proposed amendment, and in favor of the
original resolution, as reported by the Committee of Claims.
Mr. LUCAS.--I am, sir, in favor of the amendment proposed to the report
now under consideration. The unparalleled fraud which has been practised
by the divers land companies styled purchasers, under the act, or
pretended act, of Georgia of 1795, and by the Legislature that passed
that act, have been fully noticed and exposed in the course of the
debates which took place on the same subject, during the last session of
Congress, and again during these two last days. This notorious fraud,
odious as it is on the part of the land companies, is still much more
so on the part of the members of the Legislature of Georgia, as their
country had confided in them, and that themselves had pledged their faith
under the obligation of an oath. But there are other instances of fraud
and deception, materially affecting the purchase or claim in question,
which have been solely practised by the land companies, and in which
the Legislature of Georgia had no kind of participation. These charges
cannot be resisted by the ordinary means of denial of facts, for they are
supported upon authentic documents.
It ought to be observed that the four land companies who are original
purchasers under the act of the Legislature of Georgia, passed on the
7th January, 1795, stated in their petition, containing their proposals
to the Legislature to purchase certain lands belonging to the State of
Georgia, that the land contained within the bounds which were described
in their petition, amounted to 21,750,000 acres. It was evidently upon
the faith of this statement, that the Legislature consented to sell that
land for $500,000. However, it is now ascertained that the quantity of
the land thus described amounts to 35,000,000 of acres, and the companies
themselves compute it to be near 40,000,000. From this it appears
evidently that the companies have deceived the Legislature by stating
what was not true, that the contracts are legal and obligatory. The
parties ought not only to have contracted with liberty of choice, but
they ought also to have contracted with a due knowledge of the matter,
which was the object of the contract. This has not been the case here;
the Legislature have sold twice as much land as they intended to sell,
or, which is the same thing, they have sold it one time cheaper than
it was their intention, and all this loss is the result of the false
statement given by the land companies.
It is an incontrovertible maxim of law, that none ought to be benefited
by his own wrongs; this maxim applies with a double force in a contract
between the sovereign authority and private persons. The contract between
the Legislature and the land companies having been entered into by the
means of a statement which proves to be false, and which has been made by
the parties that claim the benefit arising thereof, the contract becomes
vitiated and of no effect.
Should this wrong not be sufficient to invalidate the contract, there is
another wrong that would arise from it; by the act of 1795, a reserve
was made of two millions of acres out of the several tracts sold to the
Georgia land companies, for the use of such citizens of Georgia as chose
to subscribe in the original terms of the purchase. The price paid by
the citizens who did subscribe was two cents and one-third per acre,
it being the price then supposed to have been paid by the companies,
according to the statement originally made of the whole quantity of land
contained in the purchase, which, as I have before said, proves to be
very near double the land companies would receive from the citizens of
Georgia, who clearly had a right to subscribe on the original terms; a
price per acre nearly double to that which they themselves would have to
pay, and thus have a profit on the citizens of Georgia for the difference
in the quantity of acres contained in the purchase arising from the false
statement; which reduces, with respect to the speculators, the actual
price of the land to little more than one cent per acre, while it remains
at two cents and one-third with respect to the citizens of Georgia.
However great may have been the departure of the Legislature of Georgia
from the interest of their constituents on this occasion, it appears
evidently, that by the expression, “original term,” they understand that
their citizens should subscribe, if they chose, to the amount of two
millions, upon terms similar to those of the land companies. It appears
evidently they did believe they were selling the land of the State at the
rate of two cents and one-third per acre, whilst, in fact, they received
but one cent and one-sixth, which, upon the whole, is a consideration
merely nominal.
To the multiplicity of the radical defects with which the title of
the companies claiming under the act of 1795 abound, the advocates of
the claim of the New England Mississippi Land Company answer, that
none of those who compose their company had any participation in the
fraud; they are said to be _bona fide_ purchasers, perfectly ignorant
of the fraud which may have been practised by those of whom they
bought. They are represented in their memorial and vindication as plain
farmers, mechanics, &c., who have made what they possess by the closest
application and industry.
Sir, I stand among those who are the most ready to acknowledge that the
inhabitants of New England are conspicuous for their industry; but I am
likewise of opinion, that they are not less noted for their sagacity,
in their attendance to their interest; and in the art of making good
bargains, I view them as being fully competent to cope in dealings with
the inhabitants of the Southern States. That they should not have heard
of the notorious fraud which has taken place at the passing of the act
of 1795, is a great cause of astonishment to me; that they should have
made a purchase to the amount of eleven millions of acres, without
making inquiries sufficient to discover what almost every body knew
throughout the United States, if possible, increases my astonishment. For
my part, having never thought of purchasing any land from the Georgia
land companies, I made no inquiry about the acts of the Legislature of
Georgia; yet the corruption was so flagrant, the fraud so notorious, that
it reached my ears soon after it was passed. A gentleman from Virginia
(Mr. RANDOLPH) has justly observed, yesterday, that the President of
the United States had, in his address to the two Houses of Congress,
at the beginning of the session of 1795, taken a most direct notice of
the act of Georgia, passed in January of the same year, as tending to
dangerous consequences. Certainly such solemn communications of the
first Magistrate, at the beginning of a session, contain matters that
are an object of national concern, and generally sought for. There is
not a paper in the Union that omits publishing those communications. It
would be possible, however, that this communication would have escaped
the notice of plain industrious farmers, such as are able, perhaps, to
purchase two or three hundred acres of land; but that a company of sober
and discreet speculators, and of New England too, being about purchasing
an immense quantity of land for a great sum of money, should be ignorant
of what every body knows, and of what they ought to know sooner than
any body else, is a circumstance too unaccountable and extraordinary
for me to believe that it really exists. I should rather think that the
speculators of New England, sober and discreet as they style themselves
to be, found the bargain so good and so tempting, the means of pleading
ignorance of fraud committed in the original purchase so easy, the means
on the part of the State of Georgia, or its vendee, to prove the notice
so difficult, that the sober and discreet speculators of New England
thought it advisable to make a gambling bargain, expecting that the two
extremities of the United States being engaged in the same speculation,
they would combine their force and influence to press hard upon the
centre, and save through the conflict their speculation, either in whole
or in part. Other strong circumstances lead still more to believe, that
the New England Company were well aware of the danger which did exist in
making a purchase from the Georgia land companies; and that they were
taking unusual risks upon themselves; this appears clearly from the face
of their deeds; not only the covenant of warranty is special, instead
of being general, but another extraordinary covenant is entered upon by
which the Georgia Mississippi Company “is not liable to the refunding
of any money in consequence of any defect in their title from the State
of Georgia, if any such there should hereafter appear to be.” Was not
such covenant smelling strongly of the fraud which the Georgia grant was
impregnated with? Could the New England Company take more clearly every
risk upon themselves? Could they more expressly preclude themselves from
every remedy in law or equity in case of eviction?
Mr. BOYD.--The question before the House is not whether we are to do a
good or an injury to the class of men who are denounced as a band of
speculators; but it is whether we shall agree to or reject the amendment
to the resolution offered yesterday to the House by a gentleman from
Virginia, (Mr. CLARK.) Yesterday was taken up in reading the laws of
Georgia, and of the United States, and various other papers, which have
been long in the hands of the members, and which no doubt had been so
attentively perused by them as to have rendered the reading at this day
not indispensably requisite. Mr. B. said, that if papers were to be read
for the instruction and edification of the members as to well-known
facts, he thought it would have been of more consequence to have read the
Declaration of Independence, and the Treaty of Peace of 1783, in which
the independence of the United States was acknowledged by the only Power
on earth who contended against it. We were then free, sovereign, and
independent States, to all intents and purposes, and as sovereign States,
each and every State in the Union had full power and authority to dispose
of their lands to whom they pleased, and under what conditions they
pleased. And if the State of Georgia, in the exercise of her sovereignty,
have conveyed to the Mississippi Land Company the right of soil to the
land in question, and that company have transferred the same to the New
England Mississippi Land Company, the right is vested in them; unless we
have arrived at that stage of political depravity that what was yesterday
acknowledged as a right shall to-morrow be declared a wrong.
Mr. CLARK said he was still in favor of the amendment on the table,
and which he yesterday had the honor of submitting. He did not wish it
to be understood that the amendment was intended to give a preference
to any description of claims under the different acts of the State of
Georgia, and provided for by the general resolution, but intended it
should meet directly those which have excited the most public attention,
have been the most ardently pursued, the most zealously advocated, and
attended with the most extraordinary circumstances. If the facts which
have accompanied this monstrous business from its origin to the present
moment were publicly known, or if it could be retraced through all its
cunning and wily mazes, the claims would sink beneath the weight of
honest indignation, and instead of now being urged before the Congress
of the United States, would be gladly withdrawn from public view, and
buried in perpetual silence. He peculiarly wished on this occasion a cool
and temperate discussion, to divest ourselves of all feelings, either of
improper compassion or prejudice, that equally tend to inflame the heart
and mislead the judgment. It should be his humble province to endeavor a
fair investigation of the naked question, disrobing it of those tinsel
habiliments which have been artfully thrown around it for the purpose of
concealing its real deformity.
The claims the amendment goes to reject, are derived by a pretended
law of the State of Georgia, said to have been passed in the month
of January, 1795. He would contend this law was absolutely void, _ab
initio_, not only because the Legislature had no power to make such
a law, but from the circumstances under which it was made. That the
grantees under this law could have no title to the land, either legal
or equitable; and that there have been no circumstances attending the
subsequent sales, that place the sub-purchasers under superior equitable
advantages. It will be particularly necessary, Mr. Speaker, to be
attentive to dates; that of the law under which the claims are made,
and generally known by the name of the “cession law,” has already been
noticed. Let us now see how this law passed. It stands characterized by
circumstances unparalleled in the annals of pollution--of which we have
the most conclusive evidence before us. The whole State of Georgia has
borne testimony to the fact, and it is now deposited in the archives of
the Government, that a majority of the Assembly which passed the law were
corrupted and bribed. Some had money given them; others, shares in the
lands they were effecting the sale of. This is so universally admitted
and detested, that the most enthusiastic friends of the present claimants
cheerfully allow the original grantees had no titles, and he believed
there was not one now before Congress with his claim. But it is contended
the sub-purchasers had no notice of the fraud in the original contract,
but are _bona fide_ purchasers for a good and valuable consideration
actually paid. This he never could agree to. The evidence before him was
the contrary, and he would here take a review of at least a part of that
evidence, a great portion of which, no doubt, has been destroyed by the
lapse of nine years, but a sufficiency remains when brought together,
irresistibly to carry conviction to the mind of the most skeptical. The
law itself is almost enough for this purpose. The simple object was
to sell to four companies the vacant western land; but to delude the
people and lull inquiry, it is called, “An act supplementary to an act,
entitled ‘an act for appropriating a part of the unlocated territory
of this State, and for the payment of the State troops, and for other
purposes, and the protection and support of the frontier;’” and the
same fascination is kept up through the enacting clauses, and it is the
longest act in the statute book. It goes into a lengthy examination of
the State title, of extinguishing the Indian title, and appropriating the
money, directing it to be laid out in bank stock. Where, Mr. Speaker,
will you find such a law as this? If the object of the Legislature had
been correct, would there have been a necessity for clothing the law in
such delusive colors? No, sir! fraud and infamy were to be cancelled, and
the covering must be thick. They were, however, disappointed in their
aim, for honesty and integrity had yet their residence in the State,
and as soon as it was known, the whole country was feelingly alive to
the abuse, and a general effervescence pervaded the public mind; this
was manifested in the only possible way that remained. The Assembly had
adjourned, not to meet again in a twelvemonth. Presentments of the grand
juries, in almost all the counties of the State, were made in terms of
bitter disapprobation of the law. It was also denounced in the public
prints, from one end of the continent to the other. In the month of May,
1795, a convention was held in the State; the grand jury presentments,
petitions, and remonstrances from all parts of the country were sent
up; these were, by the convention, remitted to the next Legislature
as the only competent authority to remedy so enormous an evil. In the
month of February before, as has been so ably stated by my valued friend
and colleague, (Mr. RANDOLPH,) had this subject been the substance of
a communication of the President of the United States to Congress, and
a resolution and a bill passed the House of Representatives on the
subject. Shall I, after this, be told the sub-purchasers had no notice?
Impossible; no historical event so notorious. But the evidence does
not stop here. The Georgia Legislature again assembled in the month of
November, 1795. The subject of this nefarious and wicked speculation,
that covered the country with shame and disgrace, was taken up, and if
a doubt had remained of the corruption, it was then removed by a number
of affidavits proving incontestably the fact; and on the thirteenth day
of February, 1796, a law was passed, not repealing the act of 1795,
but with honest and laudable indignation declaring it null and void,
as being bottomed upon fraud and perjury, and unveiling to the world
the most flagitious conduct that ever disgraced a legislative assembly.
It is there ascertained and declared, that the land had been sold for
three hundred thousand dollars less than what had been offered for it,
and the quantity of land much greater than it had been represented. The
lands contained in the grants to the four companies were estimated at
twenty-one millions of acres, which, at five hundred thousand dollars,
the price given, is twelve and a half cents per acre; the real quantity
is about thirty-five millions of acres; this reduces the price of the
garden of the world to nearly one and one-third cents the acre. Take
notice, Mr. Speaker, that the law of 1796 does not pretend to repeal the
act of 1795, but proclaims, to every body, that to be void which was in
reality so before, and with an honest zeal provides that the money which
had been paid should be repaid to the purchaser. This annulling law was
so precious to the people, it was a monument so honorable to the State,
that when afterwards the citizens of that State arose in the majesty of
their strength, resuming all those rights, and acted in convention, this
very law was ingrafted in their constitution.
Mr. EUSTIS.--If the position taken by the gentleman from Virginia (Mr.
CLARK) could be established, it would not in my opinion justify the
amendment which he has proposed to the resolution under consideration;
because the amendment renders the resolution null and void, and the
resolution neither affirms nor admits the legal title. Still, I should
be willing to rest the whole merits of the case on the single question,
whether the claimants, at the time of making their purchases, had or
had not a knowledge of the fraud? In the autumn of 1795, when the sales
were generally made in New England, there was no knowledge or suspicion
of fraud--the contracts were made in full confidence of the act of a
sovereign and independent State--and I know they could have had no
knowledge of any fraud in the Legislature of Georgia. We are told by
the gentleman that there was “a great uproar throughout the State of
Georgia.” Whatever might have been the nature or extent of this uproar,
I am confident that a knowledge of it had not reached New England at the
time the contracts were made. But the proof that there was no knowledge
of any fraud depends not on the opinions or assertions of individuals--it
is founded on a circumstance which removes all doubt on the subject--it
is founded on the price which the purchasers paid for the land. They
paid, as they have stated in their memorial, as much per acre for these
lands as the State of Massachusetts had received, a few years before,
for lands lying in the State of New York. And is it probable that the
purchasers who have been represented by a gentleman from Pennsylvania as
possessing so much sagacity, and looking so well to their own interests,
would have paid or contracted to pay such a price, with a knowledge that
the original grant had been fraudulently obtained?
THURSDAY, January 31.
_Georgia Claims._
The House resumed the consideration of the resolution reported the
twenty-ninth instant, from the Committee of the Whole, on the Georgia
Claims.
Mr. JACKSON.--Mr. Speaker, I rise with some degree of reluctance to
address you on the present occasion, not because I fear to give publicity
to my sentiments on the question before the House, but from the assurance
that the length of time which this subject has occupied at the last, and
during the present session of Congress, renders it most certain that no
new view can be given; and more especially that the opinions already
formed cannot be changed. I would not now have risen but for the wish
that inasmuch as a most extraordinary course has been pursued, and a
general denunciation of every man who dares to favor the report on your
table has been made, my reasons may accompany my vote, and I am willing
that they together may form the criterion by which my political existence
shall be decided. The reluctance I felt in rising is somewhat removed
by the reflection that the arguments urged on this floor are declared
not intended to influence the judgment of this House, but to control the
public mind, by an avowed appeal to the people of the United States.
Let the appeal be fairly made, and I fearlessly await their decision.
For that purpose, I deem it proper to offer my sentiments, in order that
they may accompany those of my two colleagues who have preceded me.
Sir, I am decidedly in favor of the report of the Committee of Claims,
and of course opposed to the amendment under consideration. I do not on
this occasion regret the absence of party spirit from these walls, which
has been invoked by my colleague, (Mr. RANDOLPH.) That party spirit
which has been the bane of all government; that party spirit which,
disregarding all the forms of justice, tramples its most sacred laws
under foot, and presides without check or control over questions relating
solely to private property; or which was displayed in the conduct of
Jeffries, who servilely prostrating his sacred functions to the purposes
of ministerial vengeance, has justly excited the reproach and execration
of posterity: and which, if cherished upon occasions like the present,
will tend to demolish the fair fabric of our Republican Government. I
will not admit that because a majority of this House are in favor of the
claims, and desire a prompt decision without debate, it is evidence that
“unprincipled men have acquired the ascendency, and knowing themselves
to be in the commission of wrong they are silent.” Is my colleague aware
of the extent of this doctrine? When unprincipled men, said he, acquire
the ascendency, they act in concert and are silent--silence and concert,
then, are to him proofs of corrupt motive. Is this always a correct
position? Does the gentleman recollect that measures were adopted a few
years past without discussion, by my political friends, in conjunction
with him, who were _silent, and united_? I am unwilling to believe that
such an inference can result from a union of sentiment. In some instances
we are unanimous in our decision of questions, on which no debate takes
place; but I have never thought this was proof of the prostration of
principle; nor can I suppose that the gentleman himself thinks so; even
now we adopt measures advocated by him, and are nevertheless told that
to act in concert is proof of corruption. Having premised that the
inferences made by the gentleman were not correct, I will proceed to the
investigation of the question before the House, viz: Are the claims under
the act of 1795, entitled to reference to commissioners for compromise
and settlement, or are they not? My colleague (Mr. RANDOLPH) says the
persons who obtained the land from the Legislature of Georgia were guilty
of a most detestable fraud; and the present claimants, pretending to be
innocent purchasers without notice of fraud, are a set of hypocrites,
undeserving the attention of Congress, or the commiseration of mankind.
In support of this assertion he has quoted the Message of the President
of the United States, in 1795, to Congress, describing in terms of
approbation the high character of its author--WASHINGTON--whose memory I
revere, and whose name I will teach my children to lisp, and venerate
as the father of American freedom, and who with Liberty were the two
best gifts bestowed by Heaven upon our favored country! WASHINGTON,
my colleague says, gave notice to the nation, and published the rape
of unhallowed hands upon the property of the State of Georgia. But,
sir, if we examine the Message, and the proceedings of Congress upon
the occasion, it will be discovered that no knowledge of fraud in the
transactions of the Legislature of 1795, was even known, or suspected;
because, if any such information had been received, the known integrity
of that virtuous man assures me, he would have communicated it; he would
have opposed it with his best exertions, and give me leave to say,
deprecated it as much as any man can.
Mr. FINDLAY said that he claimed the attention of the House for a short
time; but from viewing the unusual turn some of the arguments had taken,
and the nature of the subject, he found it a matter of some delicacy to
know how to proceed. He was opposed to the amendment under debate, and in
favor of the resolution, but he observed some members, with whom he had
generally voted, and for whose talents he had a high esteem, and in whose
integrity he had the utmost confidence, take the other side with such
ardent zeal, and in a mode of argument so unusual in public bodies, that
on observing this, he had hesitated and had voted in the last session for
the postponement which took place. He had done this in hopes that the
House would in this session meet the case in a temper more becoming their
own dignity and the importance and delicacy of the subject.
He said he would begin with the Message of the President near the close
of the session in February, in the year 1795, informing Congress of the
two laws made in Georgia, one in December and the other in the month of
February, 1795, (the same Message mentioned by the member from Virginia,
Mr. RANDOLPH.) The Message was referred to a select committee, of which
he had the honor of being a member, with other very intelligent members
from both South and East, (Mr. NICHOLAS, Mr. AMES, &c.) It had long been
the opinion of men well informed, that the title of Georgia to the extent
of territory she claimed was doubtful, and that it was too great for
any one State to possess in connection with the Federal Union. The old
Congress frequently called on Georgia to make a cession of her unsettled
territory, agreeably to the stipulations on which the Confederation was
agreed to, but when Georgia did propose a cession, the terms on which it
was made were rejected. Other States made cessions of lands to which they
had no title, or else had appropriated the lands to individuals before
the cession was made; so that, on the whole, but a small quantity of land
unencumbered came to the benefit of the United States. But to return: the
committee in February, 1795, examined the title of Georgia as far as they
had information, the bounds not being certainly known; the unsettled
territory of Georgia was believed to be larger than France or Germany,
or any other European nation, except Russia, whose Asiatic dominions
extend to the Pacific Ocean; hence they concluded that such an extent of
territory possessed by one State, at the extremity of the United States,
and bordering its whole length on the Spanish dominions, with which we
were then in danger of a serious contest, it was the opinion of the
committee that every proper means should be used to induce Georgia to
cede, in a peaceable manner, a proportion of that territory; and, as a
first step towards obtaining this object, the committee reported that the
Attorney-General should examine the titles of the State of Georgia and of
the lands claimed by the company from the law of 1795; and they further
reported that the President should be authorized to obtain a cession from
the State of Georgia of the whole or part of the territory.
It was not certainly known that there was a defect in the title of
Georgia, but from the circumstances of the small extent of that
colony at the beginning, and in various extensions by different royal
proclamations, &c., the title of Georgia was held in doubt. It is well
known that the State of Georgia at first was pitched into the State of
South Carolina, which for a considerable time granted titles for land
south of the State of Georgia, and one degree of latitude which the
United States claimed from the definitive treaty with Britain, was yet
in the possession of Spain; but this the members of Georgia considered
also as within the jurisdiction of that State. This being the case,
the committee thought it prudent to make no mention of the supposed
defect of the title of Georgia. The committee, and particularly himself,
suspected that different laws enacted by that State for the sale of land,
and particularly the recent sale of 1795, were encouraged by their own
suspicion of a defective title, but they knew nothing of the bribery and
corruption assigned as a reason in the year following, for annulling
the contract; therefore it was, that no notice to the contractors that
Congress doubted the title of Georgia was given. There was no precedent
in the United States of a contract authorized by a constitutional
legislative act being declared null and void by a succeeding legislature.
The power of decisions on frauds and corruptions, or the validity of
titles being vested in the courts of justice in all civilized countries,
such a decision could only be looked for from that department; but
neither a judge who is stated to have been corrupted was impeached, nor
any of the members indicted.
Mr. F. said, while the case was so situated, the New England purchasers,
or long-legged speculators, did not, as his colleague (Mr. LUCAS) had
said, go to Georgia, but the long-legged contractors or speculators
of Georgia, went above a thousand miles to Massachusetts, an old,
thick-settled country, the citizens of which needed land for their
families, (a country which annually sent forth numerous emigrants, who
generally purchased in large quantities and settled in large bodies
together,) and sold the land at seven or eight times the original price,
by which they gained near $1,000,000 advance. They went with the patents
from the State of Georgia, and the law, and probably the constitution
of that State, in their hands. This, alone, was sufficient to encourage
purchasers among a people who needed land; but this was not all. The
respectability of the characters of the settlers was such as would
reasonably induce an opinion, that they could not themselves be deceived,
and would not deceive others. Among these were a very respectable _judge
of the Supreme Court of the United States_, who had been a member of the
old Congress from almost its commencement till its dissolution, for as
long a period as the State constitution would permit, and had been an
efficient member of the Convention which prepared the Constitution of
the United States, and several State conventions, and a gentleman who
was then, and both before and after that time, a SENATOR of the United
States, and many other very respectable characters--who, however, he
acknowledged, had by that act forfeited the character they had formerly
enjoyed, and yet, strange to tell, neither before nor after the annulling
act, he could not call it a law, as no such law could be made under
the Constitution of the United States. The sale was annulled; but the
judge said to have been corrupted, nor the federal judge, was impeached,
nor any of the members of whom it was testified that they had received
bribes, or were sharers in the spoil, were indicted, but still enjoy the
confidence, as much as they otherwise would have done, of that State. Not
one of them was removed from office, or in any official manner consigned
to infamy, by the courts of that respectable State, or by impeachment.
The lands sold at Boston were yet in possession of the Indian tribes,
and the Indian war but lately extinguished, while, at the same time,
the lands in Pennsylvania were sold, the first rate at one shilling and
sixpence; the reputed second rate--but in fact equal if not superior in
quality and situation--at one shilling the acre; and what remained unsold
to the old settlements, at sixpence; and, in New York, still cheaper the
acre; when the Georgia purchase, with all its disadvantages, is stated
and admitted to have been sold, rough and smooth, good and bad, and of
which a large proportion is allowed to be bad, at something above fifteen
pence an acre on the amount reserved. Certainly such a speculation, if it
was one, was such as he would not have had any share in, and therefore
no proof of the superior cunning ascribed to them by his colleague and
others.
Mr. F. said that, so far, the bargain and sale were fair and legal;
whether it was a good bargain or a bad one, was the look-out of the
purchasers; if it was a bad one Government would have given them no
relief. Had nothing extraordinary, or out of the common road, taken
place, he believed the attention of Congress would never have been
called to the subject. Soon, however, after this contract was made,
the Legislature of Georgia declared the contract, and the law under
which it was made, to be void or annulled; and in a short time after, a
convention of that respectable State disapproved of the constitutional
act of the Legislature; but as long as we pay respect to constitutional
obligations and the distribution of the powers of government, and as long
as we respect the Federal Constitution, which expressly asserts that
no _ex post facto_ law, or law impairing the obligation of contracts,
shall be made, we must agree that one session of a legislature cannot
annul the contracts made by the preceding session. If that could be
done, the patent for his own plantation might also be set aside, for
he acknowledged it is worth more now than the price that he paid for
it. This doctrine had never been entertained even in the Revolutionary
period. At that solemn period, all contracts were protected.
Mr. F. said that he cheerfully acknowledged that the amount of land
sold under the law of Georgia of 1795, was so enormous as that, if
that State had been a separate and wholly independent government,
would have justified, in some degree, an agrarian law; and if the
fraud and corruption attested by _ex parte_ testimony was true, would
have justified the most exemplary punishment of those who suffered
themselves to be corrupted, or who defrauded the commonwealth, and this
would have proved a defect in the contract itself; but no such thing
appears to have taken place. The judge, who is said to have received
$13,000 for his vote, was not impeached, nor the members who are said
to have given, or received bribes, indicted. It appears to have been
so contrived that the State or citizens of Georgia, should suffer no
loss--that the loss and reproach should be transferred to people at the
greatest possible distance. He gave credit, however, to the Legislature
of Georgia, which met in the year 1796, for making an extraordinary
exertion to free themselves from an extraordinary evil. It was a laudable
testimony against corruption and fraud, but no court of justice had yet,
by deciding on it, acknowledged it to be law, and it was too slow for
warning others at a distance against titles originating under the law of
1795.
The annulling law of 1796 had all the effect that any citizen, at that
period, could have wished. Congress took possession of the government of
the western parts of Georgia, the parts in which the lands in question
lay, and erected a territorial government, without the consent of that
State, and passed a law authorizing the President to enter into a
negotiation with Georgia on the principles of compromise, for the right
of soil. The compromise eventually succeeded, and an act of cession
took place between the United States and the State of Georgia. In this
act of cession, or convention, it was provided that the claims in the
counties of Bourbon and Washington, bordering on the Mississippi river,
&c., should be protected, and that five millions of acres, or part
thereof, should, by the United States, be applied to satisfy, quiet, or
compensate, the claims now before the House, and that if they were not so
applied, they should revert to the State of Georgia.
On these conditions, Mr. F. said, did Georgia surrender her right of
soil. Agreeably to these conditions were the Commissioners of the United
States authorized to make and receive proposals, but the commissioners
were not authorized to conclude the agreement, they did report to
Congress, and in that report, they state that the claimants cannot, in
their opinion, recover by law. This is well founded, because no action
can be brought against the United States, nor, since the amendment
made to the constitution respecting the suability of States, against a
State. Therefore this fund, viz: the five millions of acres, set apart
by the Convention of Georgia, to quiet, satisfy, or compensate these
claims, must be either applied to that purpose, or revert to the State of
Georgia, or the faith of the United States must be sacrificed.
Mr. F. said, that from this view of the subject, he had made up his
mind to vote in favor of the report of the Committee of Claims. That
he had not made up his mind lightly, that he had been prepossessed
against it, but it becoming his duty to decide, he had thrown aside
these prepossessions, and examined the case with all the coolness and
deliberation of which he was capable, and would give his vote, as he
had made up his mind, without consulting or relying on the opinions of
others, for he was responsible only for his own opinion.
Mr. GREGG.--I rise, Mr. Speaker, to congratulate the House, on the
question being at length brought within such narrow limits. The validity
of the title appears to be nearly abandoned, and the advocates of the
resolution seem now disposed to rest its defence almost entirely on the
ground of expediency. For my own part I have always felt satisfied with
the report of the commissioners, so far as it respects the question
of title. They have investigated the subject with more diligence and
attention than can well be bestowed on it by members of this House,
and being men distinguished for their abilities and of high official
standing, their opinion, certainly, should have great weight. That
opinion, as recorded in their report, is, that the title of the claimants
cannot be supported. In this opinion I most heartily concur, for I
can never be induced to believe that an act so marked with fraud and
corruption as the act of Georgia, under which the claimants pretend to
derive their title, has been fully proved to be, can vest a title either
in law or in equity.
The question of title being given up, any remarks respecting the weight
that ought to attach to the rescinding act passed by the Legislature of
Georgia, in 1796, will be unnecessary. On that part of the subject I will
only just observe, in reply to one of my colleagues, (Mr. FINDLAY,) who
has stated that act to be without precedent, and that one Legislature
cannot repeal an act of a preceding Legislature where it involves a
contract, that there is one instance at least of such an act, and that
instance is in the State in which he and I live. The case to which
I allude, is an act passed by the Legislature of Pennsylvania, for
repealing the charter of the Bank of North America. This act, if I am not
mistaken, was passed when my colleague was a member of the Legislature,
and I believe received his support.
But, leaving the question of title, good policy, say gentlemen, requires
us to pass the resolution. In this sentiment, they and the commissioners
appear to unite. The commissioners acknowledge that the title of
the claimants cannot be supported, and yet undertake to recommend a
compromise, by stating “that the interest of the United States, the
tranquillity of those who may hereafter inhabit that territory, and
certain equitable considerations which may be urged in favor of most of
the present claimants, render it expedient to enter into a compromise on
reasonable terms.” Now, I would ask, how is the interest of the United
States to be promoted by giving five millions of acres of land to persons
acknowledged not to have a good title in law, and none in equity? If our
interest is to be promoted in this way, we may soon get rid of all our
land. Claimants will not be wanting, if it is to be got for asking.
With respect to the equitable considerations which have been urged
so strenuously in favor of the present claimants, I must acknowledge
they have not appeared to me so very forcible. The innocence of the
claimants has been painted in strong and glowing colors. They have been
represented, not only as innocent, but innocent through ignorance. One
of my colleagues, in particular, has dilated largely on this idea, and
applied it especially to the New England purchasers. In evidence of
this, he has referred to the case of the Connecticut intruders in the
State of Pennsylvania. But in this allusion he was certainly extremely
unfortunate. The case might be cited to prove a position exactly the
reverse. The fact is, that these intruders have for many years, by their
superior skill and address, held their lands in defiance of the State;
and, from appearance, I believe will continue to hold them, without
making any compensation to the State; and this instance may serve to show
the impropriety and inefficiency of governments pretending to compromise
with individuals. The measures pursued by the State of Pennsylvania
relative to these claimants have generally been of this description. They
have produced no advantage to the State, and have always been converted
by the intruders into arguments in favor of their claims. I do know
of one case that goes far to prove that there are some persons in the
Eastern States extremely uninformed in matters relating to land. The
case to which I allude is recent, having occurred but a few days ago. A
petition was presented by a gentleman from Vermont, signed by a number
of persons, praying to be permitted to form a settlement on the public
lands lying north-west of the river Ohio. On a motion for referring
it to a committee, a member from the same State rose and opposed the
reference, assigning as a reason, that if the petition should so far
receive the countenance of the House as to be referred, the petitioners
would instantly commence the sale of rights. Now, if there are people
so extremely ignorant as to purchase rights of this description, they
certainly ought to be pitied. But will any person say that the present
claimants belong to this class? No, sir; they are men experienced in
business, by all accounts well versed in transactions relating to land,
and as little liable to be imposed on as perhaps any equal number of
persons that could be selected.
But it is said they could not have knowledge of the circumstances under
which the act of Georgia of 1795 was passed; that they became purchasers
before such information could possibly reach them. This certainly cannot
be seriously insisted on. Will gentlemen look at the deeds conveying the
titles, and then say the purchasers had no notice? Evidence, if not of
the fraud, at least that there was something wrong in the business, is
stamped on the very face of all the conveyances.
Mr. J. RANDOLPH said, that, as well as his extreme indisposition and
excessive hoarseness would permit, he would lay before the House some
observations on the various objections which had been urged against the
amendment of his worthy and respectable colleague, (Mr. CLARK,) for such
he was in every point of view.
The venerable gentleman from Pennsylvania, (Mr. FINDLAY,) when he gave
in his recantation of his last year’s opinions on this subject, told you
that General Washington’s Message had no reference to the fraudulency
of the act of 1795. He considered it as a _caveat_ on behalf of the
United States, who claimed a great part of the territory in question.
Be it so. Was that notice to subsequent purchasers, or not? How will
gentlemen reconcile this inconsistency? Within the disputed limits
between the Federal Government and Georgia, five-sixths of this very New
England Company’s purchase were comprised, besides that valuable part
of the Georgia Company’s grant contained in the fork of the Alabama and
Tombigbee. The United States contended, that the country west of the
Chatahoochee, and south of a parallel of latitude which should intersect
the mouth of the Yazoo River, never constituted a part of Georgia--that
it was within the limits of the province of West Florida, from which
being severed by the peace of 1783, it became vested in the Confederacy,
and not in the State to which it happened to be contiguous. The far
greater part of the grant to the Georgia Mississippi Company is embraced
within these limits: the purchase of the New England Company is stated,
by themselves, to have been made from that company, twelve months after
the President’s Message. The gentleman from Pennsylvania, himself,
considers this Message as a formal annunciation of the adverse claim of
the United States to the land in question, and, in the same breath, avers
that the New England Company, subsequent purchasers of that very land,
were ignorant of any defect of title in the State of Georgia, or the
grantees under her. How will he reconcile this?
The same gentleman has introduced into this debate the names of two
persons; one of them, at that time, _a judge of the Supreme Court of the
United States, the other a Senator from the State of Georgia_; who, he
tells us, were deeply concerned in the transaction of 1795. Both these
gentlemen are no more. Private character, always dear, always to be
respected, seems almost canonized by the grave. When men go hence, their
evil deeds should follow them, and, for me, might sleep oblivious in
their tomb. But if the mouldering ashes of the dead are to be raked up,
let it not be for the furtherance of injustice. In every stage of this
discussion, whilst I have kept my eye steadily fixed on the enormity of
the act of 1795, I have lost sight of the agents. Since, however, some
of them have been mentioned, it may not be immaterial to notice the
interest which they took in this business. It is too true, sir, that
the Senator in question was one of the fathers of the act of 1795. By
the Assembly which passed it he was, at the same session, re-elected to
the Senate of the United States for six years thereafter. It is equally
true, Mr. Speaker, that the notorious British Treaty was ratified by
that Senator’s casting vote. And as the Yazoo speculation then carried
through the British Treaty, now, it seems, the adherents of that treaty
are to drag the Yazoo speculation out of the mire. The connection of
the two questions at that day is too notorious to be denied. That very
Senator, were he now here, would disdain to deny it. With all his faults,
he was a man of some noble qualities. Hypocrisy, at least, was not in
the catalogue of his vices. The coupling together of the British Treaty
and the Yazoo business, cannot surely be unknown to the gentleman from
Pennsylvania. He was a member of the House of Representatives which voted
the appropriation for carrying that treaty into effect, and is understood
to have acted a conspicuous part on the occasion. Can it be matter of
surprise that the same Senate that ratified the British Treaty by the
casting vote of one of the principal grantees of the act of Georgia of
1795, should refuse to co-operate with the House of Representatives,
in measures for obviating the mischiefs of that act? When you see this
corruption extending itself to two great departments of Government, can
you wonder at the bitterness of its fruit? With their leaders in the
Legislature and on the judgment seat, well might the host of corruption
feel confident in their strength; even yet they have scarcely laid aside
their audacity.
A gentleman from Massachusetts (Mr. EUSTIS) has said, that the claimants
from his State had no notice of the fraud; “that he knows they had not;”
I cannot have mistaken him, for I took down the words. Sir, I would ask
that gentleman whence arises the proverbial difficulty of providing a
negative, but from the difficulty of knowing one?
[Mr. EUSTIS rose to explain. If he had said that he knew the claimants
had not a knowledge of the fraud, he had said too much. It was impossible
that any one should know all that was known or passing in the mind of
another. Without recollecting the precise words used, he had intended
to state his own belief that they had no such knowledge or information.
He was resident and conversant with those concerned in the transaction,
it was the subject of general conversation, and if there had been any
knowledge or report of the kind, he thought it must have come to his
knowledge; but he also recollected to have stated at the time that
this circumstance did not depend on the knowledge or opinion of any
individual--as the price paid for the land precluded any idea or belief,
that the purchasers could have had any knowledge of the fraud.]
Mr. RANDOLPH resumed. The facts which I am about to mention are derived
from such a source that I could almost pledge myself for their truth:
When the agent of the Georgia Mississippi Company (under whom the New
England Land Company claim) arrived in the Eastern States, he had great
difficulty in disposing of his booty. The rumor of the fraud by which
it was acquired had gone before him. People did not like to vest their
money in this new Mississippi scheme. He accordingly applied to some
leading men of wealth and intelligence, offering to some as high as
200,000 acres, to others less, for which they were neither to pay money,
nor pass their paper, but were to stand on his books as purchasers at
so much per acre. These were the decoy-birds to bring the ducks and
geese into the net of speculation. On the faith of these persons, under
the idea that men of their information would not risk such vast sums
without some prospect of return, others resolved to venture, and gambled
in this new land fund, laid out their money in the Yazoo lottery and
have drawn blanks. And these, sir, are the innocent purchasers by whom
we are beset; purchasers without price, who never paid a shilling, and
never can be called upon for one; the vile panders of speculation. And
in what do their dupes differ from the losers in any other gambling
or usurious transaction? The premium was proportioned to the risk. As
well may your buyers and sellers of stock, your bulls and your bears
of the alley, require indemnification for their losses at the hands of
the nation. There is another fact, too little known, but unquestionably
true, in relation to this business. This scheme of buying up the
Western Territory of Georgia did not originate there. It was hatched in
Philadelphia and New York, (and I believe Boston; of this, however, I am
not positive,) and the funds with which it was effected were principally
furnished by moneyed capitalists in those towns. The direction of these
resources devolved chiefly on the Senator who has been mentioned. Too
wary to commit himself to writing, he and his associates agreed upon
a countersign. His re-election to the Senate was to be considered as
evidence that the temper of the Legislature of Georgia was suited
to their purpose, and his Northern confederates were to take their
measures accordingly. In proof of this fact, no sooner was the news of
his reappointment announced at New York, than it was publicly said in
a coffee house there, “then the Western Territory of Georgia is sold.”
Does this require a comment? Do you not see the strong probability that
many of those, who now appear in the character of purchasers from the
original grantees named in the act of 1795, are in fact partners, perhaps
instigators and prime movers of a transaction in which their names do not
appear? Amidst such a complication of guilt, how are you to discriminate;
how fix the Proteus? The Chairman of the Committee of Claims, who brought
in this report, under the lash of whose criticism we have all so often
smarted, that he is generally known as the pedagogue of the House, will
give me leave on this subject to refer him to an authority. It is one
with which he is no doubt familiar, and, however humble, well disposed to
respect. The authority which I am about to cite is Dillworth’s Spelling
Book, and if it will be more grateful to the gentleman, not our common
American edition, but the Royal English Spelling Book. In one of the
chapters of that useful elementary work it is related, that two persons
going into a shop on pretence of purchase, one of them stole a piece
of goods and handed it to the other to conceal under his cloak. When
challenged with the theft, he who stole it said he had it not, and he who
had it said he did not take it. Gentlemen, replied the honest tradesman,
what you say may all be very true, but, at the same time, I know that
between you I am robbed. And such precisely is our case. But I hope,
sir, we shall not permit the parties, whether original grantees who took
it, or subsequent purchasers who have it, to make off with the public
property.
The rigor of the Committee of Claims has passed into a proverb. It has
more than once caused the justice of this House to be questioned. What,
then, was our surprise, on reading their report, to find that they
have discovered “Equity” in the pretensions of these petitioners. Sir,
when the war-worn soldier of the Revolution, or the desolate widow and
famished offspring of him who sealed your independence with his blood,
ask at the door of that Committee for _bread_, they receive the statute
of limitation. On such occasions you hear of no equity in the case.
Their claims have not the stamp and seal of iniquity upon them. _Summum
jus_ is the measure dealt out to them. The equity of the committee is
reserved for those claims which are branded with iniquity and stamped
with infamy. This reminds me of the story of a poor, distressed female
in London applying for admittance into the Magdalen Charity. Being asked
who she was, her wretched tale was told in a few words--“I am poor,
innocent, and friendless.” “Unhappy girl,” replied the director, “your
case does not come within the purview of this institution. Innocence has
no admission here; this is a place of reception for prostitutes; you
must go and qualify yourself before you can partake of our relief.” With
equal discretion the directors of the Committee of Claims suffer nothing
to find support in their asylum but what is tainted with corruption,
and stamped with fraud. Give it these properties and they will give it
“equity.”
I have said, and I repeat it, that the aspect in which this thing
presents itself, would, alone, determine me to resist it. In one of the
petitioners I behold an executive officer, who receives and distributes
a yearly revenue of $300,000, yielding scarcely any net profit to
Government. Offices in his disposal to the annual amount of $94,000, and
contracts more lucrative making up the residue of the sum. A patronage
limited only by the extent of our country. Is this right? Is it even
decent? Shall political power be made the engine of private interest?
Shall such a suspicion tarnish your proceedings? How would you receive
a petition from the President of the United States, if such a thing can
be supposed possible? Sir, I wish to see the same purity pervading every
subordinate branch of the Administration, which, I am persuaded, exists
in its great departments. Shall persons holding appointments under the
great and good man who presides over our councils, draw on the rich
fund of his well-earned reputation, to eke out their flimsy and scanty
pretensions? Is the relation in which they stand to him, to be made the
cloak and cover of their dark designs? To the gentleman from New York,
(Mr. ROOT,) who takes fire at every insinuation against his friend, I
have only to observe, on this subject, that what I dare to say, I dare to
justify. To the House I will relate an incident, from which it may judge
how far I have lightly conceived or expressed an opinion to the prejudice
of any man. I owe an apology to my informant for making public what he
certainly did not authorize me to reveal. There is no reparation which
can be offered by one gentleman and accepted by another, that I shall
not be ready to make him; but I feel myself already justified to him,
since he sees the circumstances under which I act. A few evenings since,
a profitable contract for carrying the mail was offered to a friend of
mine who is a member of this House. You must know, sir, that the person
so often alluded to maintains a jackal, fed, not (as you would suppose)
upon the offal of contract, but with the fairest pieces in the shambles;
and, at night, when honest men are in bed, does this obscene animal prowl
through the streets of this vast and desolate city, seeking whom he may
tamper with. Well, sir, when this worthy plenipotentiary had made his
proposal, in due form, the independent man to whom it was addressed, saw
at once its drift. “Tell your principal,” said he, “that I will take his
contract, but I shall vote against the Yazoo claim, notwithstanding.”
Next day, he was told that there had been some misunderstanding of the
business, that he could not have the contract, as it was previously
bespoken by another!
Sir, I well recollect, when first I had the honor of a seat in this
House, we were members then of a small minority; a poor, forlorn hope;
that this very petitioner appeared in Philadelphia, on behalf of another
great land company on Lake Erie. He then told us as an inducement to
vote for the Connecticut reserve (as it was called) that if that measure
failed, it would ruin the republicans and the cause in that State. You,
sir, cannot have forgotten the reply he received: “That we did not
understand the republicanism that was to be paid for; that we feared it
was not of the right sort, but spurious.” And, having maintained our
principles through the ordeal of that day, shall we now abandon them,
to act with the men and upon the maxims which we then abjured? Shall we
now condescend to means which we disdained to use in the most desperate
crisis of our political fortune? This is, indeed, the age of monstrous
coalitions; and this corruption has the quality of cementing the most
inveterate enmities, personal as well as political. It has united in
close concert those, of whom it has been said, not in the figurative
language of prophecy, but in the sober narrative of history: “I have
bruised thy head, and thou hast bruised my heel.” Such is the description
of persons who would present to the President of the United States an act
to which, when he puts his hand, he signs a libel on his whole political
life. But he will never tarnish the unsullied lustre of his fame; he
will never sanction the monstrous position, (for such it is, dress it up
as you will,) “that a legislator may sell his vote, and a right, which
cannot be divested, will pass under such sale.” Establish this doctrine,
and there is an end of representative government; from that moment
republicanism receives its death-blow.
FRIDAY, February 1.
_Postmaster-General._
The SPEAKER laid before the House the following letter from Gideon
Granger, Postmaster-General of the United States:--
FEBRUARY 1, 1805.
Hon. NATHANIEL MACON, _Speaker of the House of Representatives
of the Congress of the United States_.
SIR,--I have received information, from various sources, that
both my public and private character and conduct have been
arraigned on the floor of the House of Congress by a member
of that House, in a debate of the 29th, and in another of the
31st ultime, in a case where no examination of my official
conduct was proposed. As there is not, within my knowledge,
any instance of a similar abuse offered to an officer of
Government, I know not of any precedent whereby to regulate
my conduct. I wish at all times, and more especially on an
occasion so extraordinary and unprecedented, to approach the
representatives of the nation with all that respect and regard
to which they are entitled. My feelings do not allow me, at
present, to exercise that coolness and judgment which I might
call to my aid in a case less interesting.
Conscious of the purity of my conduct, and that no charge
can be made or supported against me consistent with truth
and justice, it is a duty which I owe to my country--to
the government which has confided in me--to myself and my
family--to declare (and I do now most solemnly declare) that
every charge or insinuation which has been made against my
private or public character, or against my fairness and
impartiality, or of my attempting, by bribery, or in any
improper manner, to influence any member of Congress upon any
question pending before that honorable body, is absolutely and
altogether untrue, and founded at least in error only.
The high respect due to your body and every member of it during
your sessions, will not allow me to hazard a conjecture as to
the motives of the gentleman who has proclaimed these charges.
I court and solicit of Congress an investigation into my
official (and if they please my private) conduct, from the
first moment the Post-Office Department was committed to my
charge to the present period. Nor have I any favor to ask, save
only this, that an investigation may be had the present session.
I pray you to communicate this to the House of Representatives;
and I tender to that honorable body, and to you, their Speaker,
the assurance of my high esteem and respect.
GIDEON GRANGER.[24]
Mr. VARNUM moved that the letter of the Postmaster-General be referred
to a select committee to inquire into the subject.
Mr. NELSON hoped the motion would not prevail, as no good purpose could
be answered by the inquiry. It appeared to him to be an affair of honor
between two gentlemen, and Congress had nothing to do with it. If, upon
investigation, the charges were found to be true, Congress had no power
to remove the Postmaster-General from office. For what purpose, then,
were they to waste the time of the House in such an inquiry? That was not
the proper place to make the application; it should have been made to
the President, if made at all, as he had the power of removing officers.
The session was far advanced and limited in its duration. A variety of
important business still remained unfinished, and he feared some of it
would remain so; yet, notwithstanding, the House was called upon to
take up private quarrels between gentlemen. He hoped the motion would
not prevail, and that the gentlemen would be left to settle the dispute
themselves.
Mr. BRYAN called for the yeas and nays.
Mr. ELLIOT.--This House was informed by a member, (Mr. RANDOLPH,) in
language too strong to be misunderstood, that corruption had found its
way within these walls, and that indirect advantages had been taken to
influence the decision of the House upon a question pending before them.
An officer of the Government, who considered his conduct much implicated,
has informed the House, by letter, that he has been informed that his
public conduct has been arraigned, and prays an investigation into it. In
my opinion, nothing can be more just and reasonable than to grant it.
Mr. NICHOLSON.--I recollect but a single instance in which the conduct
of an officer of the Government has been inquired into, at his request;
that was the case of Mr. Wolcott, the late Secretary of the Treasury,
who, upon his resignation, addressed a letter to the House, requesting
an investigation into his conduct. That letter was couched in decent
terms, and the language was such that no member could take umbrage at.
Had the letter of the Postmaster-General been written in the same style,
I should have had no objection to the investigation, although I can see
no good likely to result from it. But it is couched in such language as
this House ought not to listen to. We are told in it, that charges made
by a member of this House are untrue. Are we to sit here, and suffer
such language to be used? I trust not, sir; had I known the language of
the letter, I should have opposed its being read. If gentlemen wish an
investigation into their conduct, they ought to ask it in decent terms;
and I should not oppose it, although, as I before observed, I can see no
good likely to result, for I trust that the Postmaster-General will never
be dignified with an impeachment. If the charges against him are true,
the President ought to remove him, and it is to him that he ought to
justify himself. If, however, gentlemen are anxious that an investigation
should take place, let them lay a resolution to that effect on the table,
and I will give it no opposition; but I will never agree that such a
letter as the one now on the table be referred to a committee, and, by
that means, give a sanction to the language contained in it.
Mr. GREGG regretted that such business had been brought before the House,
especially at so late a period of the session. He did not know for what
purpose an inquiry was to be made; for, supposing the charges to be true,
the House had no power to remove him. The Postmaster-General was not one
of those officers who could be impeached; and the President was the only
one that could remove him. He was opposed to the motion, conceiving that
too much important business remains unfinished, to take up new matters,
which would answer no good purpose whatever.
Mr. CLARK was opposed to the reference of the letter, on account of the
language which it contained. It charged a member of the House with having
uttered falsehood. In his opinion, such language ought not to receive any
sanction from the House.
Mr. LYON.--I feel, Mr. Speaker, a sympathy for the Postmaster-General,
who, as well as myself, was so egregiously belied yesterday by the member
from Virginia, (Mr RANDOLPH.)
[Here Mr. NICHOLSON called Mr. LYON to order, whereupon the latter sat
down, when the SPEAKER decided that the words were out of order.]
After this decision was made, Mr. LYON again rose to proceed, and was
again called to order, but the SPEAKER determining that he was in order,
Mr. BRYAN appealed to the House, and
Mr. NICHOLSON called for the yeas and nays.
The question was then taken, “Is the decision of the Chair correct?” And
it was determined in the affirmative--yeas 81, nays 34.
Mr. LYON, upon this, immediately said, I give up my right; and would not
proceed.
Mr. ELLIOT.--However surprising it may appear to some gentlemen, it is
not so to me, that the language of innocence should be warm and pointed.
We have been told that the letter is couched in disrespectful terms.
For my part, I cannot perceive any thing of the kind in it; and I am
surprised that, as it respects the gentleman who made the charges against
him, that he is so moderate. Gentlemen have said that an inquiry would
be of no service; because, if the charges are true, the officer cannot
be impeached. If gentlemen will advert to the constitution they will
find that “all civil officers are liable to impeachment,” and removal
from office. Surely it will not be contended that the Postmaster-General
is not a civil officer. The gentleman from Maryland (Mr. NICHOLSON)
differs very widely from his friend from Virginia (Mr. RANDOLPH) as to
the Postmaster-General. The former considers him as holding an office
too insignificant to be dignified with an impeachment, while the latter
deems his patronage and influence sufficient to influence or to bribe the
majority of this House. However insignificant the gentleman from Maryland
may think the Postmaster-General, still he is a civil officer, and as
such is liable to be impeached, and removed from office. We have been
told that a combination has taken place between some of those who have
avowed themselves republicans and the federalists, and that the liberties
of the country will be endangered. Sir, we have no danger to apprehend
from monarchists, aristocrats, or federalists.
Our liberty can only be endangered by those description of persons
against whom the gentleman from New York (Mr. ROOT) so emphatically
exclaimed--I mean political demagogues and popular leaders! They have
been the curse and destruction of every Republic, and I fear will be our
destruction. We are cursed with them in this country, and even in this
House. But I trust that the majority of this House are opposed to them.
The great objection which gentlemen make to the inquiry is, that the
letter is couched in too disrespectful terms. Will they please to bear
in mind the charges made against the officer, and, viewing them, is it
not a matter of astonishment that he is so mild? As the letter respects
this House, it is remarkably respectful. Upon what ground, then, can
the investigation be refused? If the charges made are true, the officer
ought to be removed; if untrue, this House ought in justice to him
whose character has been so assailed to declare that they are so. The
gentleman from Virginia (Mr. RANDOLPH) informed us yesterday that the
Postmaster-General kept in his pay a jackall, who went prowling about
this desolate city at midnight, when honest men ought to be asleep,
offering bribes to the members. Sir, the gentleman must have keen optics
to discover this jackall, when he is asleep; for he informs us that
he only goes about when honest men ought to be asleep; and surely the
gentleman is one of that description. Upon every view which I can take of
this subject, I can see no objection to the inquiry, but the strongest
reason in its favor; and justice demands that it should be made.
Mr. NELSON would offer a few remarks to the House, why he was opposed to
the motion. He would not undertake to give an opinion as to the character
of the Postmaster-General, or whether the charges made against him could
be substantiated. His objection was, that the House had nothing to do
with charges made by a member against any individual. If the charges were
true, the President (and not the House) was the proper person to apply
to, to remove the officer. But it had been said that the House had the
power to impeach all civil officers, and, therefore, could impeach the
Postmaster-General. But because the House was invested with that power,
he asked whether they were bound to exercise it? Surely not. And he
hoped they would not, when they could get rid of the officer by a more
summary mode. Late experience had taught them the trouble and expense
attendant on impeachments, and he trusted that no officer would ever be
impeached that could be removed by the President. It would be better to
let them remain in office, although guilty of misbehavior, than to spend
so much time as they would be obliged to do in cases of impeachment.
Suppose the motion should be agreed to, and the committee appointed, he
asked what power they would possess? Were they to declare whether the
charges were true or false? A determination either way would have no
effect upon the House, because they could not, he trusted, impeach the
officer. He was not disposed to do any thing to hurt the character of
the Postmaster-General, but he would not give his sanction to a measure
which would spend so much of the time of the House in deciding what he
considered an affair of private honor and private feelings between two
gentlemen. He also considered that the adoption of the resolution would
pass a censure upon the gentleman who made the charges, and he asked
whether the House were disposed to censure one of its members for any
warm and unguarded expressions about an officer of the Government? He
trusted not. How many times had charges been made in the House against
the President of the United States; but that officer had never thought it
proper to apply to the House for an inquiry into his conduct; nor did the
House ever pass a vote of censure on the members who made them. He looked
upon this as a question of dispute between two gentlemen, and no tribunal
could be erected in the House to decide on it. He should, therefore, vote
against the motion of the gentleman from Massachusetts, (Mr. VARNUM,) and
hoped it would not prevail.
Mr. HUGER knew not what was the opinion of any gentleman as to the
merits of the question, but he was satisfied that a calm decision of
it could not take place at that time. They were about to establish a
precedent, which might be of importance, and it ought to be done after
the utmost deliberation. He called upon gentlemen to say, whether it
was possible that a calm and impartial decision could be given after so
much irritation had been displayed in the debate? In order to afford an
opportunity to gentlemen to give the subject a cool and dispassionate
investigation, he moved to postpone the further consideration thereof
until Monday.
The question was taken thereon, and determined in the affirmative--yeas
93.
The resolution (Mr. Varnum’s motion to refer Mr. Granger’s letter to a
select committee) was never after called up.
_Georgia Claims._
The unfinished business of yesterday on the Yazoo claims was resumed--the
amendment offered by Mr. CLARK, under consideration.
Mr. HOLMES observed that as he was a member of the Committee of Claims,
from whom the report under consideration emanated, he thought it his duty
to state to the House the part he acted on that occasion. I was, said
Mr. H., in all our deliberations upon this subject, decidedly opposed
to the adoption of the report, and in every stage of its progression
used all fair means in my power to produce a different result; in this,
however, I was unsuccessful. My conduct was governed by a firm conviction
that the present claimants had no right in law or equity to the lands in
question, and that policy did not demand the interference of the National
Legislature. Most of the arguments that operated upon my mind then, and
will influence my vote now, have been adduced by gentlemen who preceded
me. It is not my intention to detain the House with a repetition of them;
one or two, however, have occurred to me as worthy of consideration, that
have not been urged. This must be my apology for addressing you after
the able and lengthy discussion the subject has received. I am of the
opinion, Mr. Speaker, that the Legislature of Georgia, of 1795, were not
authorized to dispose of the lands in question, even if they had been
honestly inclined to do so.
Mr. MATTHEW LYON.--From the drift of the speeches delivered by the
member from Virginia, from his call for the Postmaster-General’s report
of a list of his contracts, and from the invitation he has given to an
examination of that report, I am led to consider it a duty I owe to
myself, in this House, and in the face of the world, to take up that
report, and explain the nature of the contracts which there appear
in my name. I find my name seven times mentioned in that report: the
first is in the 12th page, for a contract for carrying the mail from
Cincinnati to Detroit; the second in the same page, and is from Marietta
to Cincinnati; these two contracts I never solicited or bid for, but the
Postmaster-General having advertised for proposals, and having received
none that he thought reasonable, they being new routes and to be let for
one year only, he wrote to me offering the price they stand there at,
and I undertook to get the business done. For the performance of the
latter contract I gave every cent I received, and without saving one
penny for a great deal of trouble, risk, and perplexity, I had taken upon
myself to get it effected. From the other I saved a few dollars toward
paying me for the care, trouble, and responsibility I had sustained
on the occasion. Long before these contracts were out, I informed the
Postmaster-General that I should take neither of them again, and the
contract from Cincinnati to Detroit was let to another person at $105 60
more than was given to me; this may be seen in the 22d line of page 20 of
the same report.
The third time my name is mentioned is in the same 12th page, and is from
Hartford to Fort Massac, a distance of about 180 or 190 miles, for which
$654 75 is paid; out of this $65 is to be paid for ferriage. For some
parts of this route I am obliged to give much more than a proportionate
share of what I receive; some other parts I give a trifle less; sometimes
my own horses carry the mail. I cannot with precision tell what is lost
or gained in it, but it cannot be $50 either way. The fourth contract is
also in the same page, it is from Russelsville to Eddygrove, or, rather,
Eddyville; it is 80 miles, for which $240 is paid; this is as low if
not lower than the price given any where south or west of this place,
and I give to the person who performs it the whole amount of what I
receive. The fifth and sixth time my name is mentioned in that report is
in the 28th page--those are merely a renewal of the two last-mentioned
contracts, which had expired in 1803; all of those contracts were made
before I was elected to my present seat in this House, before I had the
pleasure of a personal acquaintance with the present Postmaster-General,
and before I ever spoke with him.
The seventh contract is noticed in the last page of the
Postmaster-General’s report, which is from Massac to New Madrid, from
Kaskaskias to Girardeau, from Cahoka to St. Louis, a distance of more
than 200 miles, for $515, out of which more than $150 must be paid for
ferriage, at the rate ferriages stood at the time of the contract.
This is the true history of the contracts by which it is insinuated
that the Postmaster-General has bribed me. I never was bribed, sir;
it is not all the lands and negroes my accuser owns that could tempt
me to do a thing which honor or conscience dictated to me to avoid. I
could, sir, if it was pertinent, show how the over-vigilance of the
present Postmaster-General has deprived me of the benefit of the only
profitable contract I ever made with the Government--a contract made
with his predecessor which he very improperly, in my opinion, considered
void on account of some words in it not being exactly consonant with
the intention of the contracting parties; believing, however, that the
Postmaster-General designed to do what he thought right, he has not lost
my esteem, nor do I think his character can be injured by the braying of
a jackall or the fulminations of a madman.[25]
Mr. J. CLAY.--It was not my intention to have troubled the House with any
observations on the subject, but I think a view may be taken different
from any exhibited by the gentlemen who have preceded me. Some of the
gentlemen who have advocated the appropriation of the land to satisfy
the New England Mississippi Land Company, have been content to rest the
claim upon the ground of policy. They have said that if some mode should
not be taken to satisfy the Yazoo speculators, they would be incessantly
troubling Congress. If these men have any title, it must be by right
of pre-emption; and yet that title it was not practicable for them to
acquire, as the State of Georgia could not extinguish the Indian title.
Notwithstanding, however, their imbecility, the Legislature of Georgia,
of 1796, undertook to grant an estate in fee simple. It will require more
time to examine this question, and perhaps more abilities than I possess;
but I cannot conceive how Georgia had a pre-emption title to the land,
while the Indian title still existed. The Congress of the United States
possessed the sole power of extinguishing the Indian title to lands
within their territories; no individual State has either the right or the
power of extinguishing the Indian title to any lands they may claim. Of
course, Georgia had no right to grant a title in fee simple.
We are told of the policy of compromising with these speculators, and
that they are innocent purchasers. How are they so? Are they not the
very men who purchased a fraudulent claim, and does not their deed carry
on the face of it a proof that they knew it to be fraudulent? There is
also a strange coincidence: These people’s deeds are dated February
13th, 1796, the very day that the rescinding act was passed, but these
instruments were not all executed until May following. [Here Mr. J.
Clay read several passages from the pamphlet published by the agents of
the New England Yazoo Company, and compared them with the resolution of
Congress passed on that subject, from which he inferred an acknowledgment
of the present claimants, that they purchased a disputed title.] He went
on to state that Governor Strong, who was at that time a Senator of
the United States, was made acquainted with the whole transaction; and
it could not but be presumed that he and the Massachusetts delegation
communicated to their constituents the circumstance.
The general notoriety of the fraud, said Mr. CLAY, is such as to convince
any man that the present claimants are not innocent purchasers. The very
conditions under which they purchased, demonstrate this. They undertake
to stand in the shoes of men who had defrauded the State of Georgia
through a corrupt Legislature, and when they paid their money, they
conditioned that it should not be repaid them, by reason of any defect in
the title. The petitioners take it for granted, that, whatever was the
fate of the original compact, though bottomed in fraud and consequently
null, they have no other resource than in the mercy of this House. Why
did they make that stipulation in their deed? Why not take a general
warrantee? If the deeds had been executed in the usual manner, they
could have recovered their money from the party who had practised upon
them. But, notwithstanding that article, I still think they should have
recourse to the original grantees; let them go to them, and a court of
equity will do them justice.
I have no idea of supporting questions of property upon grounds of mere
policy; I shall never be inclined to squander millions of the public
money, because a gang of swindling speculators may enter this House
and prove troublesome to its members. The agents of these men have
accidentally acknowledged that they cannot extinguish the Indian title,
and, therefore, they cannot get possession of the land. What is a man
to get by a contract, when it is impossible to comply with the terms?
I was in hopes, that the representation from the State of Pennsylvania
would have been unanimous on this question: they ought to know, from the
salutary experience of their own State respecting land speculations,
whether it relates to the Connecticut, Susquehanna, or Delaware
Companies, who have kept a part of our State in a continual broil for
fifty years, while another set of men, under the garb of the Population
and Holland companies, have thrown their warrants over the north-western
corner of the State, and are likely to defeat the great objects which
the Legislature had in view, when they disposed of the lands to actual
settlers alone. I trust, however, that they will be defeated, and that
the courts of justice will determine the case in the manner in which it
was recently decided. I regret that the oldest member of Congress from
our State, should, at this late hour, abandon those republican principles
which he has so long and so ably maintained, to support a band of Yazoo
speculators. For my part, I must be an altered man indeed, if I ever
consent to a compromise with a gang of speculators holding a title
founded in fraud and speculation.
The yeas and nays were then taken on the resolution of the Committee of
Claims, and decided in the affirmative--yeas 63, nays 58, as follows:
YEAS.--Willis Alston, jun., Simeon Baldwin, Silas Betton,
Phanuel Bishop, Adam Boyd, John Boyle, John Campbell,
William Chamberlin, Martin Chittenden, Clifton Claggett,
Jacob Crowninshield, Manasseh Cutler, Richard Cutts, Samuel
W. Dana, John Davenport, John Dawson, John Dennis, William
Dickson, Thomas Dwight, James Elliot, Ebenezer Elmer, William
Eustis, William Findlay, John Fowler, Calvin Goddard, Gaylord
Griswold, Roger Griswold, Seth Hastings, William Helms, John
Hoge, James Holland, David Hough, Benjamin Huger, Samuel Hunt,
John G. Jackson, Nehemiah Knight, Simon Larned, Joseph Lewis,
jr., Henry W. Livingston, Thomas Lowndes, Matthew Lyon, Nahum
Mitchell, Jeremiah Morrow, James Mott, Thomas Plater, Samuel
D. Purviance, Erastus Root, Henry Southard, Joseph Stanton,
William Stedman, James Stephenson, Samuel Taggart, Benjamin
Tallmadge, Samuel Tenney, Samuel Thatcher, David Thomas, George
Tibbits, Killian K. Van Rensselaer, Joseph B. Varnum, Peleg
Wadsworth, Matthew Walton, Lemuel Williams, and Marmaduke
Williams.
NAYS.--Isaac Anderson, David Bard, George Michael Bedinger,
William Blackledge, Walter Bowie, Robert Brown, Joseph Bryan,
William Butler, Levi Casey, Thomas Claiborne, Christopher
Clark, Joseph Clay, Matthew Clay, John Clopton, Frederick
Conrad, John B. Earle, John W. Eppes, Peterson Goodwyn, Andrew
Gregg, Thomas Griffin, John A. Hanna, Josiah Hasbrouck, Joseph
Heister, David Holmes, Walter Jones, William Kennedy, Michael
Leib, John B. C. Lucas, Andrew McCord, David Meriwether,
Nicholas R. Moore, Thomas Moore, Roger Nelson, Anthony New,
Thomas Newton, jr., Joseph H. Nicholson, Gideon Olin, Beriah
Palmer, John Randolph, Thomas M. Randolph, John Rea of
Pennsylvania, Jacob Richards, Samuel Riker, Thomas Sammons,
Thomas Sanford, Ebenezer Seaver, James Sloan, John Smilie, John
Smith, Richard Stanford, John Stewart, Philip R. Thompson,
Abram Trigg, Isaac Van Horne, John Whitehill, Alexander Wilson,
Joseph Winston, and Thomas Wynns.
The resolution was of consequence agreed to.
Mr. J. RANDOLPH.--On this question I have nothing more to say than to
congratulate my friends on the vote just taken. We are strong in the
cause of truth, and gentlemen will find that truth will ultimately
prevail. When I compare the votes of this session with some of the votes
of the last, my objections to refer this subject are almost done away. In
whatever shape the subject may be again brought before the House, it will
be my duty, and that of my friends, to manifest the same firm spirit of
resistance, and to suffer no opportunity to pass of defeating a measure
so fraught with mischief.
[On a subsequent day, a bill was introduced for compromising the claims;
but it was not acted upon by the House during the remainder of the
session.][26]
WEDNESDAY, February 6.
_Post Roads._
The House resolved itself into a Committee of the Whole on a motion of
the seventh of December last, respecting “the establishment of a post
road from Knoxville, in the State of Tennessee, to the settlement on the
Tombigbee River, in the Mississippi Territory, and from thence to New
Orleans; also, for the establishment of a post road from Georgia to the
settlements on the Tombigbee, to intersect the former road at the most
convenient point between Knoxville and the Tombigbee;” to which Committee
of the whole House were also referred on the tenth of the said month of
December, and on the first instant, the report of a select committee, and
a Message from the President of the United States, on the same subject.
Mr. G. W. CAMPBELL observed, that having introduced this resolution,
he would very briefly state some of the reasons that induced him to do
so, and the grounds upon which he expected the committee to adopt it.
He stated the object of the measure to be two-fold: 1st. To obtain a
direct route for the transportation of the mail from Knoxville, and
also from Georgia, to the Tombigbee settlements, and thence to New
Orleans, in order to facilitate the communication with those places by
means of the mail. And 2d. To open a communication from East Tennessee
to the same places for commercial purposes. This measure, he said, was
important to the citizens of East Tennessee, in both those points of
view. The mail was conveyed at present, he observed, by a circuitous
route, from Knoxville to Nashville, two hundred miles, thence to Natchez,
at least five hundred miles, and thence to New Orleans, nearly three
hundred miles; making in the whole, from Knoxville to New Orleans, one
thousand miles. Whereas the distance from Knoxville to New Orleans by
the route proposed to be opened, would not much, if any, exceed five
hundred. A gentleman of undoubted veracity, who resided some years in
the country through which this road will pass, in the service of the
Government, estimates this route in the following manner: From Knoxville
to Tellico, thirty-three miles. This part of the route passes through
a settled country, and is at present a good road. From Tellico, to a
place called the Hickory Ground, in the Creek Nation, near the junction
of the Coosa River with the Tallapoosa, where they form the Alabama and
about twenty miles from the Tuckabatchee settlements, two hundred and
twenty miles. From thence to Fort St. Stephen’s on the Tombigbee River,
about one hundred miles; and thence to New Orleans, a direct course,
about one hundred and fifty miles, making in all five hundred and three
miles; and the largest calculations, as I had been informed, made by
the Postmaster-General, of this road from Knoxville to New Orleans, was
five hundred and fifty miles; making very little more than half the
present route. Add to this the distance from Washington to Knoxville,
according to the estimated post route, five hundred and forty-seven
miles, and the whole distance from Washington to New Orleans, passing by
Knoxville--and from thence the proposed route will be about one thousand
and fifty miles. This saving of between four and five hundred miles,
in transporting the mail from Knoxville to New Orleans, is certainly a
very important object to all those who may communicate with the latter
place, by means of this route. This road is still more necessary, for
the purpose of affording a communication from East Tennessee to the
settlement on the Tombigbee, or the eastern parts of the Mississippi
Territory. The only mode of communication at present with that country,
is by the post road already stated, by Nashville to Natchez, seven
hundred--and thence to the Tombigbee, about two hundred; making nine
hundred miles. Whereas the real distance along the proposed route, as has
been stated, will not exceed three hundred and fifty, or at most between
that and four hundred.
The effect of this circuitous route is, at present, to cut off the
communication almost entirely with that country.
But the second object for which we wish this road opened, viz: for
commercial purposes, is still more important to our citizens; and is
essential for the prosperity of our country.
The only mode by which the people of that country can, at this time,
convey their produce to market, is by boating it down the river Tennessee
into the Ohio, then along that to the Mississippi, and down that river
to New Orleans. Our boatmen employed in this trade are obliged to return
by land, as the same boats that carry produce down those rivers, cannot
ascend them, and there is but little navigation yet, in boats of any
kind, up those waters into the State of Tennessee; and no boats of any
considerable burden can pass up the river Tennessee, through the Muscle
Shoals, to the eastern part of the State. The only route by which those
boatmen can now return from New Orleans, is that already stated, on
which the mail is conveyed, being between four and five hundred miles
more than they would have to travel by the proposed route. The present
road also passes over the Cumberland mountain, a part of which is very
bad, and a wilderness at this part of the route, subject to the Indian
claim, of between seventy and one hundred miles, without inhabitants. It
also passes through another wilderness between Nashville and Natchez,
subject to the Indian claim, of about four hundred miles, a considerable
part of which is stated to be very bad road in winter, and that there
are many large water courses to be passed. The difficulties are so great
that few of our citizens are willing to embark in this trade, and our
farmers, having no convenient vent for their surplus produce, have little
or no inducement to industry beyond what may be necessary to produce the
ordinary supplies of subsistence. This in a very great degree retards
the progress of agriculture, and consequently the prosperity of our
country. It is therefore hoped that this House will feel disposed to
encourage the farming interests of our infant country by removing those
obstacles to its progress that the State authority is incompetent to
effect, and that prove so materially injurious to the interests of our
citizens. Here it may be proper to remark that this proposed road, so
far as it is desired to be established by this measure, passes through
a country belonging entirely to the United States, except about sixty
miles, and most of it subject to the claim of Indian tribes, being the
Mississippi Territory until it enters West Florida, or Orleans Territory.
This distance of about sixty miles alluded to, is from Tellico, on the
frontiers of the settlements in East Tennessee, to a point beyond the
south boundary of that State in the State of Georgia, and near the limits
of the Mississippi Territory, being also subject to the Indian claim.
A road has already been authorized to be opened in this direction; has
been viewed and designated by commissioners appointed for that purpose
from our State, at the expense of the State, and it is expected, by this
time, has been opened, being designed to afford us a communication with
the State of Georgia. This road will answer the proposed route--at least
as far as the limits of our State--being, as before stated, about sixty
or seventy miles from Tellico, and about one hundred from Knoxville.
There will therefore remain only about one hundred miles (or very little
more, if any) to be opened, to the point at which the road proposed from
Georgia will intersect this route. From this view of the subject, it
will appear we do not require the United States to be at any expense in
opening a road within the limits of the State of Tennessee, but only to
open it through a country belonging exclusively, except the Indian claim,
to the United States. With regard to the roads proposed to be opened from
Georgia to the Tombigbee settlements, so as to intersect the former road
at the most convenient point between Tellico and the said settlements,
what has been advanced to show the necessity of the former road will
apply with equal force to this. The only route by which the people of
Georgia can at present communicate with New Orleans, by means of the
mail, or travel to that place along any authorized road, is that already
stated, from Knoxville; thence by Natchez to New Orleans; and the people,
even on the frontiers of that State, have to travel nearly three hundred
miles to Knoxville to take this route, and are not then much, if any,
nearer New Orleans than when they set out. This in a great degree cuts
off this communication with that country. The road proposed to be opened
from Georgia, according to the best information, will intersect the road
from Knoxville, near the junction of Coosa and Tallapoosa Rivers, and
about two hundred miles, or somewhat more, from the latter place--of
which, as already stated, one hundred miles at least are opened, and only
about one hundred remain to be opened. The country through which the road
from Knoxville will pass, is represented, by those who are acquainted
with it, and who have resided many years among the Indian nations that
inhabit it, to be a fine, open country, generally dry without being
broken by any mountains, and very few streams of any considerable size
to be crossed, and no large rivers until you arrive at the Tombigbee. It
will pass along the high lands that lie between the waters falling into
the Tennessee River, and those that are discharged into the Coosa and
Alabama Rivers, and will require but little expense to be made a good
road. We hope, therefore, upon viewing all those circumstances, Congress
will agree to afford us the aid we require, and which is essentially
necessary to enable us to resort to the only market that will compensate
our farmers for their industry, encourage agriculture and commerce, and
promote the prosperity of our country.
When Mr. W. had concluded, the committee rose, and had leave to sit again.
TUESDAY, February 12.
_Counting Electoral Votes._
On motion it was
_Resolved_, That a committee be appointed on the part of this House, to
join such committee as may be appointed on the part of the Senate, to
ascertain and report a mode of examining the votes for President and Vice
President, and of notifying the persons who shall be elected, of their
election; and to regulate the time, place, and manner of administering
the oath of office to the President.
_Ordered_, That Mr. JOSEPH CLAY, Mr. VARNUM, Mr. DENNIS, Mr. THOMAS
MOORE, and Mr. DICKSON, be appointed a committee, pursuant to said
resolution; and that the Clerk of this House do carry the resolution to
the Senate, and desire their concurrence.
A message from the Senate notified the House that the Senate will be
ready to receive the House of Representatives in the Senate Chamber, on
Wednesday, the thirteenth of February, at noon, for the purpose of being
present at the opening and counting the votes for President and Vice
President of the United States: That one person be appointed a teller on
the part of the Senate to make a list of votes for President and Vice
President of the United States, as they shall be declared, and that the
result shall be delivered to the President of the Senate, who shall
announce the state of the vote, which shall be entered on the Journals,
and if it shall appear that a choice had been made agreeably to the
constitution, such entry on the Journals shall be deemed a sufficient
declaration thereof.
_Amy Dardin._
Mr. CLAIBORNE, from the committee appointed yesterday, presented a bill
for the relief of Amy Dardin, and the legal representatives of David
Dardin, deceased; which was read twice, and committed to a Committee of
the whole House to-morrow.
WEDNESDAY, February 13.
_Counting Electoral Votes._
A message was received from the Senate informing the House that Mr.
SMITH of Maryland has been appointed a teller of the votes of President
and Vice President of the United States, on the part of the Senate,
conformably with their vote of the twelfth instant, and are now ready,
in the Senate Chamber, to proceed therein: Whereupon, Mr. SPEAKER,
attended by the House, proceeded to the Senate Chamber, and took seats
therein; when, both Houses being assembled, the PRESIDENT of the Senate,
in the presence of both Houses, proceeded to open the certificates of
the Electors of the several States, beginning with the State of New
Hampshire; and as the votes were read, the tellers on the part of each
House counted and took lists of the same; which, being compared, were
delivered to the President of the Senate, and are as follows:
[Given in the Senate proceedings of the same day.]
The PRESIDENT of the Senate, in pursuance of the duty enjoined upon him,
announced the state of the votes to both Houses, and declared that THOMAS
JEFFERSON, of Virginia, having the greatest number, and a majority of the
votes of the Electors appointed, was duly elected President of the United
States, for the term commencing on the fourth day of March next; and
that GEORGE CLINTON, of New York, having also the greatest number, and
a majority of the votes of all the Electors appointed, was duly elected
Vice President of the United States, for the term commencing on the
fourth day of March next.
The two Houses then separated, and the House of Representatives being
returned to their Chamber, Mr. SPEAKER resumed the Chair.
The list of the votes of the Electors for President and Vice President of
the United States, as declared by the PRESIDENT of the Senate, and herein
before recited, was read at the Clerk’s table.
THURSDAY, February 14.
A new member, to wit, GEORGE CLINTON, jr., returned to serve as a member
of this House, for the State of New York, in the place of Samuel L.
Mitchill, appointed a Senator of the United States, appeared, produced
his credentials, was qualified, and took his seat in the House.
MONDAY, February 18.
_Ordered_, That Mr. ROGER GRISWOLD, Mr. J. CLAY, Mr. BLACKLEDGE, Mr.
HUGER, and Mr. NICHOLAS R. MOORE, be appointed of the said committee, on
the part of this House; and that the Clerk of this House do carry the
said resolution to the Senate, and desire their concurrence.
The House proceeded to the further consideration of the bill authorizing
the Secretary of War to issue military land warrants, and for other
purposes, to which the Committee of the whole House, to whom it had been
committed, reported no amendment, on the thirteenth instant; and the said
bill being twice read and amended at the Clerk’s table, was, together
with the amendments, ordered to be engrossed, and read the third time
to-morrow.
The House resolved itself into a Committee of the Whole on the bill for
the relief of Philip Nicklin and Robert Eaglesfield Griffith; and, after
some time spent therein, the committee rose, reported progress, and were
discharged from the further consideration thereof, and the bill was
recommitted to the Committee of Commerce and Manufactures.
TUESDAY, February 19.
_Richard Taylor._
The House resolved itself into a Committee of the Whole on the report of
the Committee of Claims, of the thirteenth instant, to whom was referred
the memorial of Richard Taylor, of the State of Kentucky; and, after
some time spent therein, the committee rose and reported a resolution
thereupon; which was twice read, and agreed to by the House, as follows:
_Resolved_, That the prayer of the memorial of Richard Taylor
is reasonable, and ought to be granted.
_Ordered_, That a bill, or bills, be brought in, pursuant to the said
resolution; and that the Committee of Claims do prepare and bring in the
same.
FRIDAY, March 1.
_Presidential Oath of Office._
The SPEAKER laid before the House a letter addressed to him signed,
“Th. Jefferson,” notifying, that “he shall take the oath which the
constitution prescribes to the President of the United States, before he
enters on the execution of his office, on Monday, the fourth instant, at
twelve o’clock, in the Senate Chamber.”
Ordered to lie on the table.
_Eodem Die, 4 o’clock, P. M._
_Removal of Federal Judges._
On a motion made by Mr. JOHN RANDOLPH, that the House do come to the
following resolution:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds
of both Houses concurring_, That the following article
be submitted to the Legislatures of the several States,
which, when ratified and confirmed by the Legislatures of
three-fourths of the said States, shall be valid and binding,
as a part of the Constitution of the United States:
The judges of the Supreme and all other Courts of the United
States, shall be removed by the President, on the joint address
of both Houses of Congress, requesting the same, any thing
in the Constitution of the United States to the contrary
notwithstanding:
A motion was made and seconded that the said proposed resolution be
referred to the consideration of a Committee of the whole House; and the
question being taken thereupon, it was resolved in the affirmative--yeas
68, nays 33, as follows:
YEAS.--Willis Alston, jr., Isaac Anderson, David Bard, William
Blackledge, Walter Bowie, Adam Boyd, Robert Brown, Joseph
Bryan, William Butler, Levi Casey, Thomas Claiborne, Joseph
Clay, George Clinton, jun., John Clopton, Frederick Conrad,
Jacob Crowninshield, Richard Cutts, John Dawson, John B.
Earle, Peter Early, John W. Eppes, William Findlay, John
Fowler, Peterson Goodwyn, Andrew Gregg, John A. Hanna, Josiah
Hasbrouck, Jas. Holland, David Holmes, John G. Jackson, Walter
Jones, Nehemiah Knight, Michael Leib, J. B. C. Lucas, Andrew
McCord, William McCreery, Nicholas R. Moore, Thomas Moore,
Jeremiah Morrow, Roger Nelson, Thomas Newton, jun., Joseph H.
Nicholson, Gideon Olin, Beriah Palmer, Oliver Phelps, John
Randolph, John Rea of Pennsylvania, John Rhea of Tennessee,
Jacob Richards, Samuel Riker, Cæsar A. Rodney, Thomas Sammons,
Ebenezer Seaver, James Sloan, John Smilie, Henry Southard,
Richard Stanford, Joseph Stanton, John Stewart, David Thomas,
Philip R. Thompson, Isaac Van Horne, Joseph B. Varnum, Matthew
Walton, John Whitehill, Alexander Wilson, Richard Wynn, and
Thomas Wynns.
NAYS.--Nathaniel Alexander, Simeon Baldwin, Silas Betton,
William Chamberlin, Martin Chittenden, Clifton Claggett,
Manasseh Cutler, Samuel W. Dana, John Davenport, Thomas Dwight,
James Elliot, Ebenezer Elmer, Calvin Goddard, Gaylord Griswold,
Roger Griswold, Seth Hastings, William Helms, John Hoge, Benj.
Huger, Simon Larned, Thomas Lowndes, Nahum Mitchell, Erastus
Root, William Stedman, Samuel Taggart, Benjamin Tallmadge,
Samuel Tenney, Samuel Thatcher, George Tibbits, Killian K. Van
Rensselaer, Peleg Wadsworth, Lemuel Williams, and Marmaduke
Williams.
Another motion was made, and the question being put, that the said
resolution be the order of the day for the first Monday in December next,
it was resolved in the affirmative.
_Recall of Senators._
On a motion made by Mr. NICHOLSON,
_Resolved_, That the following article, when adopted by
two-thirds of both Houses of Congress, and by the Legislatures
of three-fourths of the respective States, shall become a part
of the Constitution of the United States, viz:
That the Legislature of any State may, whenever the said
Legislature shall think proper, recall, at any period whatever,
any Senator of the United States, who may have been elected
by them; and whenever a vote of the Legislature of any State,
vacating the seat of any Senator of the United States, who may
have been elected by the said State, shall be made known to the
Senate of the United States, the seat of such Senator shall
thenceforth be vacated:
A motion was made and seconded, that the said proposed resolution be
referred to the consideration of a Committee of the whole House; and the
question being taken thereupon, it was resolved in the affirmative--yeas,
53, nays 46, as follows:
YEAS.--Willis Alston, junior, Isaac Anderson, David Bard,
Walter Bowie, Robert Brown, Joseph Bryan, William Butler, Levi
Casey, Thomas Claiborne, Joseph Clay, George Clinton, jun.,
John Clopton, Frederick Conrad, John Dawson, John B. Earle,
Peter Early, J. W. Eppes, Peterson Goodwyn, Andrew Gregg, John
A. Hanna, Josiah Hasbrouck, Joseph Heister, James Holland,
David Holmes, Nehemiah Knight, Michael Leib, Andrew McCord,
William McCreery, Nicholas R. Moore, Thomas Moore, Jeremiah
Morrow, Roger Nelson, Anthony New, Thomas Newton, jun., Joseph
H. Nicholson, Gideon Olin, Beriah Palmer, John Randolph, John
Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards,
Thomas Sammons, Ebenezer Seaver, James Sloan, Richard Stanford,
Joseph Stanton, John Stewart, Philip R. Thompson, Abram Trigg,
John Whitehill, Alexander Wilson, Richard Wynn, and Thomas
Wynns.
NAYS.--Nathaniel Alexander, Simeon Baldwin, Silas Betton,
William Blackledge, Adam Boyd, William Chamberlin, Martin
Chittenden, Clifton Claggett, Jacob Crowninshield, Manasseh
Cutler, Richard Cutts, John Davenport, Thomas Dwight, James
Elliot, Ebenezer Elmer, William Findlay, John Fowler, Gaylord
Griswold, Roger Griswold, Seth Hastings, William Helms, David
Hough, Benjamin Huger, John G. Jackson, William Kennedy, Simon
Larned, Thomas Lowndes, John B. C. Lucas, Nahum Mitchell,
Oliver Phelps, Erastus Root, John Smilie, Henry Southard,
William Stedman, Samuel Taggart, Benjamin Tallmadge, Samuel
Tenney, Samuel Thatcher, David Thomas, George Tibbits, Killian
K. Van Rensselaer, Joseph B. Varnum, Peleg Wadsworth, Lemuel
Williams, and Marmaduke Williams.
Another motion was then made, and the question being put, that the said
resolution be the order of the day for the first Monday in December next,
it was resolved in the affirmative--yeas 70, nays 28.
SATURDAY, March 2.
The House resolved itself into a Committee of the Whole on the bill, sent
from the Senate, entitled “An act to amend an act, entitled ‘An act for
imposing more specific duties on the importation of certain articles;
and, also, for levying and collecting light money on foreign ships or
vessels,’” to which the Committee of Ways and Means, to whom it had been
referred, reported no amendment, on the eighteenth of January last; and,
after some time spent therein, the Committee reported the same to the
House without amendment.
The House then proceeded to consider the said bill: Whereupon a motion
was made and seconded that the further consideration thereof be postponed
until the first Monday in December next, and the question being put
thereon, it passed in the negative--yeas 43, nays 46, as follows:
YEAS.--David Bard, Silas Betton, Adam Boyd, William Butler,
John Campbell, William Chamberlin, Martin Chittenden, Clifton
Claggett, Frederick Conrad, Samuel W. Dana, John Davenport,
Thomas Dwight, James Elliot, Ebenezer Elmer, John W. Eppes,
Calvin Goddard, Peterson Goodwyn, Andrew Gregg, Gaylord
Griswold, Roger Griswold, John Hoge, David Hough, Benjamin
Huger, Samuel Hunt, John G. Jackson, Thomas Lowndes, John B. C.
Lucas, Nahum Mitchell, Beriah Palmer, Thomas Plater, John Rea
of Pennsylvania, John Rhea of Tennessee, Thomas Sammons, Thomas
Sanford, Henry Southard, Richard Stanford, William Stedman,
John Stewart, Samuel Taggart, Benj. Tallmadge, Samuel Tenney,
Samuel Thatcher, and George Tibbits.
NAYS.--Willis Alston, jun., Nathaniel Alexander, Isaac
Anderson, William Blackledge, Walter Bowie, Robert Brown,
Joseph Clay, Matthew Clay, John Clopton, Jacob Crowninshield,
John Dawson, John Fowler, Josiah Hasbrouck, James Holland,
David Holmes, William Kennedy, Nehemiah Knight, Simon Larned,
Michael Leib, Matthew Lyon, Andrew McCord, William McCreery,
Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Roger Nelson,
Anthony New, Thomas Newton, jr., Joseph H. Nicholson, Gideon
Olin, John Randolph, Thomas Mann Randolph, Jacob Richards,
James Sloan, John Smilie, Joseph Stanton, Philip R. Thompson,
Abram Trigg, Joseph B. Varnum, John Whitehill, Lemuel Williams,
Alexander Wilson, Richard Wynn, Joseph Winston, and Thomas
Wynns.
And then the main question being taken, that the said bill do pass, it
was resolved in the affirmative.
An engrossed bill further to provide for the accommodation of the
President of the United States, was read the third time, and passed.
A message from the Senate informed the House that the Senate have passed
a bill, entitled “An act supplementary to an act, entitled ‘An act
making an appropriation for carrying into effect the Convention between
the United States of America and His Britannic Majesty;’” to which they
desire the concurrence of this House.
_Eodem Die, 5 o’clock, P. M._
A message from the Senate informed the House that the Senate have passed
the bill, entitled “An act supplementary to the act, entitled ‘An act
making provision for the disposal of the public lands in the Indiana
Territory, and for other purposes,’” with an amendment; to which they
desire the concurrence of this House; also, the bill, entitled “An
act further to alter and establish certain post roads, and for other
purposes,” with several amendments; to which they desire the concurrence
of this House.
The House proceeded to consider the amendment proposed by the Senate to
the bill, entitled “An act supplementary to the act, entitled ‘An act
making provision for the disposal of the public lands in the Indiana
Territory and for other purposes:’” Whereupon,
_Resolved_, That this House doth agree to the said amendment.
SUNDAY, March 3.
_Importation of Slaves._
Mr. VARNUM, one of the members for the State of Massachusetts, presented
to the House a letter from the Governor of the said State, enclosing an
attested copy of two concurrent resolutions of the Senate and House of
Representatives of the State of Massachusetts, passed the fifteenth of
February in the present year, “instructing the Senators and requesting
the Representatives in Congress, from the said State, to take all legal
and necessary steps, to use their utmost exertions, as soon as the same
is practicable, to obtain an amendment to the Federal Constitution, so as
to authorize and empower the Congress of the United States to pass a law,
whenever they may deem it expedient, to prevent the further importation
of slaves from any of the West India islands, from the coast of Africa,
or elsewhere, into the United States, or any part thereof:” Whereupon,
a motion was made and seconded, that the House do come to the following
resolution:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds of
both Houses concurring_, That the following article be proposed
to the Legislatures of the several States, as an amendment to
the Constitution of the United States, which, when ratified by
three-fourths of the said Legislatures, shall be valid to all
intents and purposes, as a part of the said constitution, to
wit:
“That the Congress of the United States shall have power to
prevent the further importation of slaves into the United
States and the Territories thereof.”
The said proposed resolution was read, and ordered to lie on the table.
_Commodore Preble._
The resolutions sent from the Senate, “expressive of the sense of
Congress of the gallant conduct of Commodore Edward Preble, the officers,
seamen, and marines, of his squadron,” together with the amendments
agreed to this day, were read the third time; and on the question that
the same do pass, it was unanimously resolved in the affirmative.
_Eodem Die, 5 o’clock, P. M._
A message from the Senate informed the House that the Senate insist on
their amendments disagreed to by this House to the bill, entitled “An act
making an appropriation for the payment of witnesses summoned on the part
of the United States, in support of the impeachment of Samuel Chase,” and
desire a conference with this House on the subject-matter of the said
amendments; to which conference the Senate have appointed managers, on
their part.
The Senate have agreed to the amendments proposed by this House to the
resolutions “expressive of the sense of Congress of the gallant conduct
of Commodore Edward Preble, the officers, seamen, and marines, of his
squadron,” with amendments; to which they desire the concurrence of this
House.
_Divorces._
The order of the day for the House to resolve itself into a Committee of
the Whole on the bill to authorize the Circuit Court of the District of
Columbia to decree divorces in certain cases, being called for, a motion
was made, and the question being put, that the said order of the day be
postponed until the first Monday in December next, it was resolved in the
affirmative.
A motion was then made and seconded, that the House do come to the
following resolutions:
_Resolved_, That the Clerk of this House be, and he is
hereby, directed to pay out of the contingent fund of this
House, to every witness summoned on behalf of the House of
Representatives, to attend the Senate in support of the
impeachment of Samuel Chase, for every day’s attendance, the
sum of three dollars, and the further sum of twenty cents for
each mile in coming from and returning to his place of abode.
_Resolved_, That the Clerk be likewise directed to pay, out
of the said fund, any other expense incurred by order of the
managers of the said impeachment, and certified by their
chairman.
On which motion, various efforts were made to obtain a decision of
the House on the previous question, “that the House do now proceed to
consider the said motion;” but no result could, in any instance, be
obtained for the want of a quorum.
_Adjournment._
After which, a quorum being present,
A message from the Senate informed the House, that the Senate have
appointed a committee, on their part, jointly with such committee as may
be appointed on the part of this House, to wait on the President of the
United States, and notify him of the proposed recess of Congress.
The House proceeded to consider the foregoing message of the Senate, and
_Resolved_, That this House do agree to the same, and that Mr. JOHN
RANDOLPH, Mr. HUGER, and Mr. NELSON, be appointed of the said committee,
on the part of this House.
Mr. JOHN RANDOLPH, from the committee appointed on the part of this
House, jointly with the committee appointed on the part of the Senate,
to wait on the President of the United States, and notify him of the
proposed recess of Congress, reported that the committee had performed
that service; and that the President signified to them that he had no
further communication to make during the present session.
A message from the Senate informed the House that the Senate, having
finished the legislative business before them, are now ready to adjourn.
_Ordered_, That a message be sent to the Senate to inform them that
this House, having completed the business before them, are now about to
adjourn, without day; and that the Clerk of this House do go with the
said message.
The Clerk, accordingly, went with the said message; and, being returned,
The SPEAKER adjourned the House, _sine die_.[27]
NINTH CONGRESS.--FIRST SESSION.
BEGUN AT THE CITY OF WASHINGTON, DECEMBER 2, 1805.
PROCEEDINGS IN THE SENATE.
LIST OF MEMBERS OF THE SENATE.
_New Hampshire._--William Plumer, Nathaniel Gilman.
_Vermont._--Stephen R. Bradley, Israel Smith.
_Massachusetts._--John Quincy Adams, Timothy Pickering.
_Rhode Island_.--James Fenner, Benjamin Howland.
_Connecticut._--James Hillhouse, Uriah Tracy.
_New York._--Samuel L. Mitchill, John Smith.
_New Jersey._--John Condit, Aaron Kitchel.
_Pennsylvania._--George Logan, Samuel Maclay.
_Delaware._--Samuel White, James A. Bayard.
_Maryland._--Samuel Smith, Robert Wright.
_Virginia._--Andrew Moore.
_North Carolina._--David Stone, James Turner.
_South Carolina._--Thomas Sumter, John Gaillard.
_Georgia._--Abraham Baldwin, James Jackson.
_Tennessee._--Daniel Smith, Joseph Anderson.
_Kentucky._--Buckner Thruston, John Adair.
_Ohio._--Thomas Worthington, John Smith.
MONDAY, December 2, 1805.
The first session of the Ninth Congress conformably to the Constitution
of the United States, commenced this day, at the city of Washington, and
the Senate assembled.
PRESENT:
WILLIAM PLUMER and NICHOLAS GILMAN, from New Hampshire.
JOHN QUINCY ADAMS and TIMOTHY PICKERING, from Massachusetts.
JAMES HILLHOUSE and URIAH TRACY, from Connecticut.
JAMES FENNER, from Rhode Island.
STEPHEN R. BRADLEY and ISRAEL SMITH, from Vermont.
SAMUEL L. MITCHILL, from New York.
JOHN CONDIT and AARON KITCHEL, from New Jersey.
GEORGE LOGAN and SAMUEL MACLAY, from Pennsylvania.
SAMUEL WHITE, from Delaware.
SAMUEL SMITH, from Maryland.
DAVID STONE, from North Carolina.
THOMAS SUMTER and JOHN GAILLARD, from South Carolina.
ABRAHAM BALDWIN, from Georgia.
DAVID SMITH, from Tennessee.
THOMAS WORTHINGTON, from Ohio.
The VICE PRESIDENT being absent, the Senate proceeded to the election of
a President _pro tem._, as the constitution provides, and the Honorable
SAMUEL SMITH was appointed.
The credentials of the following Senators were read, viz:
Of ABRAHAM BALDWIN, appointed a Senator by the Legislature of the State
of Georgia, for the term of six years, from the 3d day of March last;
of JAMES A. BAYARD, appointed a Senator by the Legislature of the
State of Delaware, for the term of six years, from the 3d day of March
last; of JAMES FENNER, appointed a Senator by the Legislature of the
State of Rhode Island, for the term of six years, from the 3d day of
March last; of NICHOLAS GILMAN, appointed a Senator by the Legislature
of the State of New Hampshire, for the term of six years, from the
3d day of March last; of AARON KITCHEL, appointed a Senator by the
Legislature of the State of New Jersey, to serve during the term limited
by the constitution; of TIMOTHY PICKERING, appointed a Senator by the
Legislature of the State of Massachusetts, for the term of six years,
to commence on the 4th day of March last; of DANIEL SMITH, appointed a
Senator by the Legislature of the State of Tennessee, for the term of six
years, from the 3d of March last; and of BUCKNER THRUSTON, appointed a
Senator by the Legislature of the State of Kentucky.
The oath was administered by the President to the following Senators, as
the law prescribes: Mr. BALDWIN, Mr. FENNER, Mr. GILMAN, Mr. KITCHEL, Mr.
PICKERING, and Mr. SMITH of Tennessee; also, to Mr. SUMTER, appointed a
Senator by the Legislature of the State of South Carolina, for the term
of six years, commencing on the 4th day of March last.
_Ordered_, That the Secretary wait on the President of the United States,
and acquaint him that a quorum of the Senate is assembled, and that, in
the absence of the Vice President, they have elected the Honorable SAMUEL
SMITH President of the Senate _pro tempore_.
_Ordered_, That the Secretary make a like communication to the House of
Representatives.
_Ordered_, That Messrs. SUMTER and MITCHILL be a committee, on the part
of the Senate, with such committee as the House of Representatives may
appoint on their part, to wait on the President of the United States and
notify him that a quorum of the two Houses is assembled, and ready to
receive any communication that he may be pleased to make to them.
TUESDAY, December 3.
JOSEPH ANDERSON, from the State of Tennessee; BUCKNER THRUSTON, from
the State of Kentucky; and ROBERT WRIGHT, from the State of Maryland,
attended.
A message from the House of Representatives informed the Senate that a
quorum of the House of Representatives is assembled, and have appointed
NATHANIEL MACON, Esq., one of the Representatives for North Carolina,
their Speaker, and are ready to proceed to business. The House of
Representatives have appointed a committee on their part, jointly with
the committee appointed on the part of the Senate, to wait on the
President of the United States, and notify him that a quorum of the two
Houses is assembled, and ready to receive any communications that he may
be pleased to make to them. The House of Representatives agree to the
resolution of the Senate for the appointment of two Chaplains.
Mr. SUMTER reported, from the committee appointed yesterday to wait on
the President of the United States, that they had performed the service,
and that the President of the United States informed the committee that
he would make his communications to the two Houses at twelve o’clock this
day.
The oath prescribed by law was administered to Mr. THRUSTON.
The following message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States of America_:
At a moment when the nations of Europe are in commotion, and
arming against each other, and when those with whom we have
principal intercourse are engaged in the general contest, and
when the countenance of some of them towards our peaceable
country threatens that even that may not be unaffected by
what is passing on the general theatre, a meeting of the
Representatives of the nation in both Houses of Congress has
become more than usually desirable. Coming from every section
of our country they bring with them the sentiments and the
information of the whole, and will be enabled to give a
direction to the public affairs, which the will and the wisdom
of the whole will approve and support.
Since our last meeting the aspect of our foreign relations
has considerably changed. Our coasts have been infested, and
our harbors watched, by private armed vessels, some of them
without commissions, some with illegal commissions, others with
those of legal form, but committing piratical acts beyond the
authority of their commissions. They have captured in the very
entrance of our harbors, as well as on the high seas, not only
the vessels of our friends coming to trade with us, but our
own also. They have carried them off under pretence of legal
adjudication; but, not daring to approach a court of justice,
they have plundered and sunk them by the way, or in obscure
places, where no evidence could arise against them; maltreated
the crews, and abandoned them in boats in the open sea, or
on desert shores, without food or covering. These enormities
appearing to be unreached by any control of their sovereigns,
I found it necessary to equip a force to cruise within our
own seas, to arrest all vessels of these descriptions found
hovering on our coasts, within the limits of the Gulf Stream,
and to bring the offenders in for trial as pirates.
The same system of hovering on our coasts and harbors, under
color of seeking enemies, has been also carried on by public
armed ships, to the great annoyance and oppression of our
commerce. New principles, too, have been interpolated into the
law of nations, founded neither in justice nor the usage or
acknowledgment of nations. According to these, a belligerent
takes to itself a commerce with its own enemy which it denies
to a neutral, on the ground of its aiding that enemy in the
war. But reason revolts at such an inconsistency, and the
neutral, having equal right with the belligerent to decide the
question, the interests of our constituents, and the duty of
maintaining the authority of reason, the only umpire between
just nations, impose on us the obligation of providing an
effectual and determined opposition to a doctrine so injurious
to the rights of peaceable nations. Indeed, the confidence
we ought to have in the justice of others still countenances
the hope that a sounder view of those rights will, of itself,
induce from every belligerent a more correct observance of them.
With Spain, our negotiations for a settlement of differences
have not had a satisfactory issue. Spoliations during a
former war, for which she had formally acknowledged herself
responsible, have been refused to be compensated but on
conditions affecting other claims in nowise connected with
them. Yet the same practices are renewed in the present war,
and are already of great amount. On the Mobile, our commerce
passing through that river continues to be obstructed by
arbitrary duties and vexatious searches. Propositions for
adjusting amicably the boundaries of Louisiana have not been
acceded to. While, however, the right is unsettled, we have
avoided changing the state of things by taking new posts or
strengthening ourselves in the disputed territories, in the
hope that the other power would not, by a contrary conduct,
oblige us to meet their example, and endanger conflicts of
authority the issue of which may not be easily controlled.
But in this hope we have now reason to lessen our confidence.
Inroads have been recently made into the territories of Orleans
and Mississippi, our citizens have been seized and their
property plundered in the very parts of the former which had
been actually delivered up by Spain, and this by the regular
officers and soldiers of that Government. I have, therefore,
found it necessary, at length, to give orders to our troops
on that frontier to be in readiness to protect our citizens,
and to repel by arms any similar aggressions in future. Other
details, necessary for your full information of the state of
things between this country and that, shall be the subject of
another communication. In reviewing these injuries from some of
the belligerent powers, the moderation, the firmness, and the
wisdom, of the Legislature will all be called into action. We
ought still to hope that time and a more correct estimate of
interest, as well as of character, will produce the justice we
are bound to expect. But should any nation deceive itself by
false calculations, and disappoint that expectation, we must
join in the unprofitable contest of trying which party can do
the other the most harm.
Considerable provision has been made, under former authorities
from Congress, of materials for the construction of ships of
war of seventy-four guns. These materials are on hand, subject
to the further will of the Legislature.
An immediate prohibition of the exportation of ammunition is
also submitted to your determination.
Turning from these unpleasant views of violence and wrong, I
congratulate you on the liberation of our fellow-citizens who
were stranded on the coast of Tripoli and made prisoners of
war. In a Government bottomed on the will of all, the life
and liberty of every individual citizen become interesting to
all. In the treaty, therefore, which has concluded our warfare
with that State, an article for the ransom of our citizens has
been agreed to. An operation by land, by a small band of our
countrymen, and others engaged for the occasion, in conjunction
with the troops of the ex-bashaw of that country, gallantly
conducted by our late Consul Eaton, and their successful
enterprise on the city of Derne, contributed, doubtless, to the
impression which produced peace; and the conclusion of this,
prevented opportunities of which the officers and men of our
squadron, destined for Tripoli, would have availed themselves
to emulate the acts of valor exhibited by their brethren in
the attack of the last year. Reflecting with high satisfaction
on the distinguished bravery displayed, whenever occasions
permitted, in the late Mediterranean service, I think it would
be a useful encouragement, as well as a just reward, to make
an opening for some present promotion, by enlarging our peace
establishment of captains and lieutenants.
With Tunis some misunderstandings have arisen, not yet
sufficiently explained, but friendly discussions with their
Ambassador, recently arrived, and a mutual disposition to do
whatever is just and reasonable, cannot fail of dissipating
these. So that we may consider our peace on that coast,
generally, to be on as sound a footing as it has been at any
preceding time. Still, it will not be expedient to withdraw,
immediately, the whole of our force from that sea.
The law providing for a Naval Peace Establishment fixes the
number of frigates which shall be kept in constant service in
time of peace, and prescribes that they shall be manned by not
more than two-thirds of their complement of seamen and ordinary
seamen. Whether a frigate may be trusted to two-thirds only of
her proper complement of men, must depend on the nature of the
service on which she is ordered. That may sometimes for her
safety, as well as to ensure her object, require her fullest
complement. In adverting to this subject, Congress will,
perhaps, consider whether the best limitation on the Executive
discretion in this case, would not be by the number of seamen
which may be employed in the whole service, rather than by the
number of vessels. Occasions oftener arise for the employment
of small than of large vessels, and it would lessen risk as
well as expense, to be authorized to employ them of preference.
The limitation suggested by the number of seamen would admit a
selection of vessels best adapted to the service.
Our Indian neighbors are advancing, many of them, with spirit,
and others beginning to engage in the pursuits of agriculture
and household manufacture. They are becoming sensible that the
earth yields subsistence with less labor and more certainty
than the forest, and find it their interest, from time to
time, to dispose of parts of their surplus and waste lands for
the means of improving those they occupy, and of subsisting
their families while they are preparing their farms. Since
your last session, the northern tribes have sold to us the
lands between the Connecticut Reserve and the former Indian
boundary, and those on the Ohio, from the same boundary to the
Rapids, and for a considerable depth inland. The Chickasaws
and Cherokees have sold us the country between and adjacent to
the two districts of Tennessee, and the Creeks the residue of
their lands in the fork of Ocmulgee, up to the Ulcofauhatche.
The three former purchases are important, inasmuch as they
consolidate disjoined parts of our settled country, and render
their intercourse secure; and the second particularly so, as,
with the small point on the river, which we expect is by this
time ceded by the Piankeshaws, it completes our possession of
the whole of both banks of the Ohio, from its source to near
its mouth, and the navigation of that river is thereby rendered
for ever safe to our citizens settled and settling on its
extensive waters. The purchase from the Creeks too has been for
some time particularly interesting to the State of Georgia.
The several treaties which have been mentioned will be
submitted to both Houses of Congress for the exercise of their
respective functions.
Deputations, now on their way to the seat of Government, from
various nations of Indians inhabiting the Missouri and other
parts beyond the Mississippi, come charged with assurances of
their satisfaction with the new relations in which they are
placed with us, of their dispositions to cultivate our peace
and friendship, and their desire to enter into commercial
intercourse with us. A state of our progress in exploring
the principal rivers of that country, and of the information
respecting them hitherto obtained, will be communicated so soon
as we shall receive some further relations which we have reason
shortly to expect.
The receipts at the Treasury during the year ending on the
30th day of September last, have exceeded the sum of thirteen
millions of dollars, which, with not quite five millions in the
Treasury at the beginning of the year, have enabled us, after
meeting other demands, to pay nearly two millions of the debt
contracted under the British treaty and convention, upwards
of four millions of principal of the public debt, and four
millions of interest. These payments, with those which had been
made in three years and a half preceding, have extinguished of
the funded debt nearly eighteen millions of principal.
Congress, by their act of November 10, 1803, authorized us to
borrow $1,750,000, towards meeting the claims of our citizens,
assumed by the convention with France. We have not, however,
made use of this authority; because, the sum of four millions
and a half, which remained in the Treasury on the same 30th day
of September last, with the receipts which we may calculate on
for the ensuing year, besides paying the annual sum of eight
millions of dollars, appropriated to the funded debt, and
meeting all the current demands which may be expected, will
enable us to pay the whole sum of three millions seven hundred
and fifty thousand dollars, assumed by the French convention,
and still leave us a surplus of nearly a million of dollars at
our free disposal. Should you concur in the provisions of arms
and armed vessels, recommended by the circumstances of the
times, this surplus will furnish the means of doing so.
On the first occasion of addressing Congress, since, by the
choice of my constituents, I have entered on a second term
of administration, I embrace the opportunity to give this
public assurance, that I will exert my best endeavors to
administer faithfully the Executive Department, and will
zealously co-operate with you in every measure which may tend
to secure the liberty, property, and personal safety, of our
fellow-citizens, and to consolidate the republican forms and
principles of our Government.
In the course of your session, you shall receive all the aid
which I can give, for the despatch of public business, and all
the information necessary for your deliberations, of which the
interests of our own country, and the confidence reposed in us
by others, will admit a communication.
TH. JEFFERSON.
DECEMBER 3, 1805.
The Message was read and three hundred copies thereof ordered to be
printed for the use of the Senate.
WEDNESDAY, December 4.
_Chaplain._
The Senate proceeded to the election of a Chaplain, on their part, in
pursuance of the resolution of the two Houses, and the ballots being
collected, were, for Doctor GANTT, 15; Bishop CLAGGETT, 5; Mr. MCCORMICK,
2. So the Reverend Doctor GANTT was elected a Chaplain to Congress, on
the part of the Senate, during the present session.
MONDAY, December 9.
JAMES JACKSON, from the State of Georgia, attended.
JOHN ADAIR, appointed a Senator by the Legislature of the State of
Kentucky, in place of John Breckenridge, Esq., resigned, produced his
credentials, which were read; and the oath prescribed by law having been
administered, he took his seat in the Senate.
A confidential Message was received from the PRESIDENT OF THE UNITED
STATES, as follows:
_To the Senate and House of Representatives of the United
States_:
The depredations which have been committed on the commerce of
the United States during a preceding war, by persons under the
authority of Spain, are sufficiently known to all. These made
it a duty to require from that Government indemnifications for
our injured citizens; a convention was accordingly entered into
between the Minister of the United States at Madrid, and the
Minister of that Government for Foreign Affairs, by which it
was agreed that spoliations committed by Spanish subjects, and
carried into ports of Spain, should be paid for by that nation;
and that those committed by French subjects, and carried into
Spanish ports, should remain for further discussion. Before
this convention was returned to Spain with our ratification,
the transfer of Louisiana by France to the United States took
place; an event as unexpected as disagreeable to Spain. From
that moment she seemed to change her conduct and dispositions
toward us. It was first manifested by her protest against the
right of France to alienate Louisiana to us; which, however,
was soon retracted, and the right confirmed: then high offence
was manifested at the act of Congress establishing a collection
district on the Mobile, although, by an authentic declaration,
immediately made, it was expressly confined to our acknowledged
limits; and she now refused to ratify the convention signed by
her own Minister, under the eye of his sovereign, unless we
would consent to alterations of its terms, which would have
affected our claims against her for the spoliations by French
subjects carried into Spanish ports.
To obtain justice, as well as to restore friendship, I thought
a special mission advisable; and accordingly appointed James
Monroe, Minister Extraordinary and Plenipotentiary, to repair
to Madrid, and, in conjunction with our Minister resident
there, to endeavor to procure a ratification of the former
convention, and to come to an understanding with Spain as to
the boundaries of Louisiana. It appeared at once that her
policy was to reserve herself for events, and, in the mean
time, to keep our differences in an undetermined state. This
will be evident from the papers now communicated to you. After
nearly five months of fruitless endeavor to bring them to some
definite and satisfactory result, our ministers ended the
conferences, without having been able to obtain indemnity for
spoliations of any description, or any satisfaction as to the
boundaries of Louisiana, other than a declaration that we had
no rights eastward of the Iberville, and that our line to the
west was one which would have left us but a string of land
on that bank of the river Mississippi. Our injured citizens
were thus left without any prospect of retribution from the
wrong-doer; and, as to boundary, each party was to take its own
course. That which they have chosen to pursue, will appear from
the documents now communicated. They authorize the inference
that it is their intention to advance on our possessions, until
they shall be repressed by an opposing force. Considering that
Congress alone is constitutionally invested with the power of
changing our condition from peace to war, I have thought it my
duty to await their authority for using force in any degree
which could be avoided. I have barely instructed the officers
stationed in the neighborhood of the aggressions, to protect
our citizens from violence, to patrol within the borders
actually delivered to us, and not to go out of them, but, when
necessary to repel an inroad, or to rescue a citizen or his
property; and the Spanish officers remaining at New Orleans are
required to depart without further delay. It ought to be noted
here, that since the late change in the state of affairs in
Europe, Spain has ordered her cruisers and courts to respect
our treaty with her.
The conduct of France, and the part she may take in the
misunderstandings between the United States and Spain, are
too important to be unconsidered. She was prompt and decided
in her declarations, that our demands on Spain for French
spoliations carried into Spanish ports were included in the
settlement between the United States and France: she took at
once the ground that she had acquired no right from Spain,
and had meant to deliver us none, eastward of the Iberville;
her silence as to the western boundary, leaving us to infer
her opinion might be against Spain in that quarter. Whatever
direction she might mean to give to these differences, it does
not appear that she has contemplated their proceeding to actual
rupture, or that, at the date of our last advices from Paris,
her Government had any suspicion of the hostile attitude Spain
had taken here; on the contrary, we have reason to believe that
she was disposed to effect a settlement on a plan analogous to
what our ministers had proposed, and so comprehensive as to
remove, as far as possible, the grounds of future collision
and controversy on the eastern as well as western side of the
Mississippi.
The present crisis in Europe is favorable for pressing such
a settlement, and not a moment should be lost in availing
ourselves of it. Should it pass unimproved, our situation would
become much more difficult. Formal war is not necessary--it
is not probable it will follow; but the protection of our
citizens, the spirit and honor of our country, require that
force should be interposed to a certain degree. It will
probably contribute to advance the object of peace.
But the course to be pursued will require the command of
means which it belongs to Congress exclusively to yield or
to deny. To them I communicate every fact material for their
information, and the documents necessary to enable them to
judge for themselves. To their wisdom, then, I look for the
course I am to pursue; and will pursue, with sincere zeal, that
which they shall approve.
TH. JEFFERSON.
DECEMBER 6, 1805.
The Message was read, and ordered to lie for consideration.
TUESDAY, December 10.
ANDREW MOORE, from the State of Virginia, attended.
MONDAY, December 16.
GEORGE CLINTON, Vice President of the United States and President of the
Senate, attended.
JOHN SMITH, from the State of Ohio, also attended.
FRIDAY, December 20.
JOHN SMITH, from the State of New York, attended.
_Trade with St. Domingo._
Agreeably to notice given on the 18th instant, Mr. LOGAN asked leave to
bring in a bill to suspend the commercial intercourse between the United
States of America and the French island of St. Domingo.
Mr. L. observed that the attention of Congress had been called to this
subject by the President of the United States, at the commencement of the
last session of Congress, in the following words:
“While noticing the irregularities committed on the ocean by
others, those on our own part should not be omitted, nor left
unprovided for. Complaints have been received, that persons
residing within the United States have taken on themselves to
arm merchant vessels, and to force a commerce into certain
ports and countries in defiance of the laws of those countries.
That individuals should undertake to wage private war,
independently of the authority of their country, cannot be
permitted in a well-ordered society. Its tendency to produce
aggressions on the laws and rights of other nations, and to
endanger the peace of our own, is so obvious, that I doubt
not you will adopt measures for restraining it effectually in
future.”
Mr. L. observed that the commerce as carried on by the citizens of the
United States is not only a violation of the law of nations, which the
United States as an independent nation is bound to obey, but is in
direct violation of a treaty made in 1800, between the United States
and France--a treaty on the most liberal principles as to the rights of
neutrals, and highly advantageous and honorable to both nations.
To remedy the evils complained of, a law was enacted during the last
session of Congress to regulate the clearance of armed merchant vessels;
this act has operated as a deception, as, since the publication of the
law, the trade with St. Domingo has been carried on to as great if not
greater extent than formerly. The only merit of the arming law is, that
in a national view it removes the responsibility from the individual who
may be engaged in the trade, to the Government by which it is authorized.
Mr. ADAMS.--Mr. President: Had the gentleman who asks leave to introduce
this bill, assigned any new reasons as the foundation of his motion,
whatever my opinion might have been upon their merits, I should not
think it proper to combat them at this time; but the object of the bill
is so simple, that its details are immaterial. Its purpose is totally
to prohibit a branch of our commerce, which at the last session of the
Legislature was proved to be of great importance to the country. Unless,
therefore, a majority of the Senate should be of opinion that the bill
ought to pass, it appears to me that the present is the stage at which
it ought to be arrested: since the mere discussion of the question, and
pendency of the measure before Congress, may have an unfavorable effect
upon the commercial interest, or at least injuriously affect individual
merchants, in the course of their affairs.
Mr. JACKSON seconded Mr. LOGAN’s motion, and in reply to Mr. ADAMS said,
that he wished Mr. LOGAN to make it an annual motion, as Mr. Sawbridge
had, in the Parliament of England, to reduce septennial Parliaments, but
with more effect, until the trade so highly dishonorable to national
character was annihilated. As to Mr. ADAMS’s observations that the bill
was not allowed to be brought in last session, and that he had heard no
new arguments, he would answer the gentleman by asking what new arguments
had been advanced on the bill to prohibit the importation of slaves,
when leave was given two days since to bring in the bill, and the same
arguments had been rung in our ears by Quakers and others, ever since the
constitution had been in operation, and not a new one had been produced.
He said that the day would come when this dishonorable traffic would
be rued by the United States; that day must arrive when a general peace
would take place, when the present hostilities must cease; that it must
and would then become the interest of every nation of Europe, having
colonies in the West Indies, to extirpate this horde or ship them off
to some other place. That the United States, by affording them succor,
arms, ammunition, and provisions, must be considered by them as their
allies--their supporters and their protectors. That he believed the
United States would be viewed in this light by the French Government and
by themselves, and that they would demand and expect us to grant them
an asylum as allies and protectors, and send them to our coast. This
was no novelty; and he had received information from a late celebrated
French General, given in a public company at the city of Washington where
he boarded, and the General was one who dined there, that arrangements
had been made, if General Le Clerc had been victorious, to send those
brigands to the Southern States. This was a melancholy subject for South
Carolina and Georgia, and one of those brigands introduced into the
Southern States was worse than a hundred importations of blacks from
Africa, and more dangerous to the United States.
Mr. S. SMITH.--We are told that a celebrated French General, since here,
has said, that had General Le Clerc succeeded, he meant to have landed
all the blacks of St. Domingo on our southern shores. This may be--but,
sir, it is not probable. If such, however, had been his intention, it
could not have arisen from resentment on account of our commerce, for
we had been of the greatest utility to him and his army, and had then
carried on no commerce that was not fully sanctioned by France. Nay, I
might say, that owing to the supplies from the United States, the colony
of St. Domingo had been preserved to the mother country until the arrival
of General Le Clerc. Unless, Mr. President, the honorable mover shall
produce some new information, I shall be under the necessity of voting
against leave to bring in this bill.
Mr. MITCHILL, in a speech of considerable length and detail, stated his
objections to giving leave.
During the last session of Congress, the whole of the intercourse with
St. Domingo had undergone a full investigation. While the bill regulating
the clearance of armed merchant vessels was under discussion, that
part of our foreign commerce had been minutely examined. It would be
remembered that the bill had been committed, recommitted, amended, and
modified, with the utmost labor and skill. Besides the talents which
the Senate afforded, all the sources of Executive information had been
drained, to aid their researches. And the letters of the British and
French Ministers, complaining of the conduct of our merchants in forcing
this trade, were opened to our view. The crude material of the bill had
been hammered at and worked upon so elaborately, as to have at last
received the complete burnish of a law. With all the knowledge that could
be derived from so many quarters, the bill was at length passed to check
the violence of our navigators, and to restrain the adventurous zeal of
our merchants. The provisions of this law were such as it was deemed just
and proper that a neutral nation should take. And this was a liberal
condescension to the wishes of the two great maritime and belligerent
powers, without forgetting the respect that we owed to our own. With both
these he wished to cultivate peace and good understanding; but to neither
of them would he consent to yield any portion of our neutral and national
rights.
The difficulties exhibited in the ministerial correspondence, Mr. M.
said, were thus removed. With a promptitude that deserved to be admired,
Congress interposed its authority, for the purpose at once of doing
justice to our neighbors, regulating our commerce, and tranquillizing
the Mexican seas. With these salutary provisions, he believed the two
complaining nations had been satisfied. At least we had done so much
that they ought in all reason to be content. Congress had already
manifested a due regard to all that France and Great Britain had offered
upon the branch of West Indian commerce, and in the true spirit of good
neighborhood, and correct principle, had modified and restricted the
intercourse with Hayti. And so fully did the Europeans seem to acquiesce
in our conduct, that he had not heard any further remonstrances made by
either of them about it. He thought the observations of the gentleman
from Massachusetts (Mr. ADAMS) very much in point. Under a conviction
that we had done as much as public faith and national honor required, he
had given his vote against the introduction of a similar bill during the
last session. Nothing had occurred from that time to this day, to alter
the circumstances of the case, or to make it necessary for him to change
his conduct.
For my own part, said Mr. M., I think the St. Domingo commerce is no
great thing in itself. We might do exceedingly well without it; and I am
very far from approving the means by which it has been carried on; but
I dislike the idea of forbidding it, at the mandate of a foreign power.
Like our Revolutionary patriots, let us put our foot here, and hence
refuse to budge. It is not for us to legislate at the nod or bidding of
any nation. I hope we understand our business better than to register
edicts for them; while we pay due respect to others, it becomes us also
to respect ourselves. The precedent is a dangerous one. If we agree to
interdict this intercourse, we may, at the next session, be informed
that we ought to withdraw from some other important port or region. When
we are found to be so complying to one nation, we shall be subjected to
a like request or menace from another, until, sir, our flag shall be
furled in one foreign port after another, and nothing be left us but the
coasting trade at home. The sad consequences have been ably portrayed by
the gentleman from Maryland, (Mr. SAMUEL SMITH.)
Mr. HILLHOUSE said, he hoped the question would be taken by yeas and
nays, because he confidently expected there would be a great majority
of the Senate opposed to giving leave to bring in the bill, for he
considered the measure not only as improper, but as ill-timed.
The gentleman from Georgia has told us that the conflict in St. Domingo
is that of masters attempting to reclaim their slaves, and that if the
United States suffer the trade to be carried on, we shall be considered
as aiding and upholding those slaves, and give offence to France. And
that when peace shall take place in Europe, the French will transport
those negroes by thousands to the shores of South Carolina and Georgia,
to the endangering the lives of the citizens of those States. This Mr. H.
considered as a bugbear, with which we ought not to be frightened, for,
as to the warfare in St. Domingo being a mere conflict between master
and slave, it will be well remembered that the French Republic long ago
liberated all the slaves in that island, and declared them free. As to
the citizens of the United States carrying arms and military stores to
the enemies of France, the law of nations has declared the penalty,
which is a forfeiture of the property, and the United States can in no
way be implicated thereby. And as to France landing those negroes on our
shores, he said there was power, and he believed there would be found a
disposition in the people of the United States to repel such an insult;
for if we cannot prevent France or any other power from invading our
territory and insulting our national honor, by landing their outcasts
upon our shores, we shall no longer deserve the name of an independent
nation.
Mr. JACKSON, in reply to Mr. SMITH and Mr. MITCHILL, confessed he had
seen no official document, other than what the honorable mover had
read, but he had seen at Newcastle, in Delaware, a whole fleet bound
to St. Domingo, to force a trade which even captains of vessels, true
Americans, cried shame on. That the honorable gentleman had called out,
why had not the mover brought forward a resolution against Britain or
some other power who had committed depredations on our commerce! Mr. J.
said he wished to begin here, by preventing our own merchants from doing
injury to other nations, and then to strike at those who insulted us. He
for himself was prepared and willing to attack the first power who had
insulted us with far more superior weapons than arming our ships. He was
an agricultural man, and would suffer with the flour-makers; but he would
call on the honorable gentleman either from Maryland, from New York, from
Massachusetts, or Connecticut, to strike at Great Britain or any other
nation who had injured us, by a resolution of prohibition of trade or
intercourse, and he was the man who would second it and keep it on till
the injuring nation should cry _peccavi_--keep it on one twelvemonth,
and you would see them all at your feet. Look at the Legislature of
Jamaica petitioning their Governor from time to time for American
intercourse. Look at Trinidad, the same, in a state of famine. Sir, we
have no favors to ask the nations of the earth; they must ask them of us,
or their West India colonies must starve.
That, however, with respect to documents, he would inform the gentleman
from Maryland, that he had seen, though not official, a letter from
General Ferrand, Governor of St. Domingo, and which was published in all
the principal newspapers of the United States, complaining to the French
Government on this subject, and laying all the blame to the American
Government, if not in direct, in the most severe indirect terms. That as
to the total separation of the self-created Emperor and nation of Hayti,
and its independence of the parent country, and under which gentlemen
declared our rights of trade founded on the laws of nations--the late
attack on that General by the Emperor proved it did not exist; he was
defeated, his army scattered and driven to the mountains; that Ferrand
held the island as French Governor for the French nation, and the
separation was not such as to warrant the arguments used for a right
to trade. It would be a fatal argument used against us as respected
our Southern States by other powers. On the same grounds, a parcel of
runaways and outcasts from South Carolina and Georgia, to the amount
of some hundreds, now collected on or near the Okefonokee[28] swamp in
Georgia, might be termed an independent society; or if an insurrection
took place in those States, the rebellious horde, on creating an emperor,
be supplied with arms and ammunition, as a separate and independent
nation. This, as the honorable gentleman from Connecticut had been
pleased to term his fears bugbears, might be no bugbear to him, safe and
remote from the scene of action, near New Haven; but it was a serious
bugbear to him, and would be to the whole southern country, where the
horrid scenes of that island would be reacted, their property destroyed,
and their families massacred.
After a few replicatory remarks from Mr. LOGAN, the consideration of the
subject was postponed to Monday.
TUESDAY, January 7, 1806.
JAMES TURNER, appointed a Senator by the Legislature of the State of
North Carolina, for the term of six years, from the third of March, 1805,
produced his credentials, which were read, and the oath prescribed by law
having been administered, he took his seat in the Senate.
MONDAY, January 13.
_Hamet Caramalli, ex-Bashaw of Tripoli._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States:_
I lay before Congress the application of Hamet Caramalli, elder
brother of the reigning Bashaw of Tripoli, soliciting from the
United States attention to his services and sufferings in the
late war against that State. And, in order to possess them of
the ground on which that application stands, the facts shall be
stated according to the views and information of the Executive.
During the war with Tripoli, it was suggested that Hamet
Caramalli, elder brother of the reigning Bashaw, and driven by
him from his throne, meditated the recovery of his inheritance,
and that a concert of action with us was desirable to him.
We considered that concerted operations by those who have a
common enemy were entirely justifiable, and might produce
effects favorable to both without binding either to guarantee
the objects of the other. But the distance of the scene, the
difficulties of communication, and the uncertainty of our
information, inducing the less confidence in the measure, it
was committed to our agents as one which might be resorted to,
if it promised to promote our success.
Mr. Eaton, however, (our late Consul,) on his return from the
Mediterranean, possessing personal knowledge of the scene,
and having confidence in the effect of a joint operation, we
authorized Commodore Barron, then proceeding with his squadron,
to enter into an understanding with Hamet, if he should deem it
useful; and as it was represented that he would need some aids
of arms and ammunition, and even of money, he was authorized to
furnish them to a moderate extent, according to the prospect
of utility to be expected from it. In order to avail him of
the advantages of Mr. Eaton’s knowledge of circumstances,
an occasional employment was provided for the latter as an
agent for the Navy in that sea. Our expectation was, that
an intercourse should be kept up between the ex-Bashaw and
the Commodore, that while the former moved on by land, our
squadron should proceed with equal pace, so as to arrive at
their destination together, and to attack the common enemy by
land and sea at the same time. The instructions of June 6th to
Commodore Barron show that a co-operation only was intended,
and by no means a union of our object with the fortune of
the ex-Bashaw; and the Commodore’s letters of March 22d and
May 19th, prove that he had the most correct idea of our
intentions. His verbal instructions, indeed, to Mr. Eaton and
Captain Hull, if the expressions are accurately committed to
writing by those gentlemen, do not limit the extent of his
co-operation as rigorously as he probably intended; but it is
certain, from the ex-Bashaw’s letter of January 3d, written
when he was proceeding to join Mr. Eaton, and in which he says,
“your operations should be carried on by sea, mine by land,”
that he left the position in which he was, with a proper idea
of the nature of the co-operation. If Mr. Eaton’s subsequent
convention should appear to bring forward other objects, his
letter of April 29th and May 1st, views this convention but
as provisional; the second article, as he expressly states,
guarding it against any ill effect, and his letter of June
30th confirms this construction.
In the event it was found, that, after placing the ex-Bashaw
in possession of Derne, one of the most important cities and
provinces of the country, where he had resided himself as
governor, he was totally unable to command any resources, or
to bear any part in co-operation with us. This hope was then
at an end, and we certainly had never contemplated, nor were
we prepared to land an army of our own, or to raise, pay, or
subsist, an army of Arabs to march from Derne to Tripoli, and
to carry on a land war at such a distance from our resources.
Our means and our authority were merely naval, and that such
were the expectations of Hamet, his letter of June 29th is an
unequivocal acknowledgment. While, therefore, an impression
from the capture of Derne might still operate at Tripoli, and
an attack on that place from our squadron was daily expected,
Colonel Lear thought it the best moment to listen to overtures
of peace, then made by the Bashaw. He did so, and while urging
provisions for the United States, he paid attention also to the
interests of Hamet, but was able to effect nothing more than to
engage the restitution of his family, and even the persevering
in this demand, suspended for some time the conclusion of the
treaty.
In operations at such distance, it becomes necessary to leave
much to the discretion of the agents employed, but events may
still turn up beyond the limits of that discretion. Unable in
such a case to consult his government, a zealous citizen will
act as he believes that would direct him, were it apprised of
the circumstances, and will take on himself the responsibility.
In all these cases the purity and patriotism of the motives
should shield the agent from blame, and even secure a sanction
where the error is not too injurious. Should it be thought by
any, that the verbal instructions said to have been given by
Commodore Barron to Mr. Eaton amount to a stipulation that
the United States should place Hamet Caramalli on the throne
of Tripoli, a stipulation so entirely unauthorized, so far
beyond our views, and so onerous, could not be sanctioned by
our Government, or should Hamet Caramalli, contrary to the
evidence of his letters of January 3d and June 29th, be thought
to have left the position which he now seems to regret, under
a mistaken expectation that we were at all events to place him
on his throne, on an appeal to the liberality of the nation,
something equivalent to the replacing him in his former
situation might be worthy its consideration.
A nation, by establishing a character of liberality and
magnanimity, gains in the friendship and respect of others more
than the worth of mere money. This appeal is now made by Hamet
Caramalli to the United States. The ground he has taken being
different, not only from our views, but from those expressed
by himself on former occasions, Mr. Eaton was desired to state
whether any verbal communications passed from him to Hamet,
which had varied what he saw in writing. His answer of December
5th, is herewith transmitted, and has rendered it still
more necessary, that, in presenting to the Legislature the
application of Hamet, I should present them at the same time an
exact statement of the views and proceedings of the Executive,
through this whole business, that they may clearly understand
the ground on which we are placed. It is accompanied by all
the papers which bear any relation to the principles of the
co-operation, and which can inform their judgment in deciding
on the application of Hamet Caramalli.
TH. JEFFERSON.
JANUARY 13, 1806.
The Message and documents therein referred to were read, and ordered to
lie for consideration,
And on motion, the House adjourned.
TUESDAY, January 14.
_Inhabitants of Galliopolis._
Mr. WORTHINGTON presented the petition of a number of French settlers
of Galliopolis, grantees, on the 3d of March, 1795, of 20,000 acres of
land, situated on the Ohio River, and nearly opposite the mouth of Little
Sandusky, on condition that they settle the same within five years from
the date of the letters patent, and stating that they, being ignorant
of this condition, are liable to lose their lands, although for the
space of four years they have paid the taxes thereon, and praying the
interposition of Congress in their behalf; and the petition was read
and referred to Messrs. WORTHINGTON, SMITH of Tennessee, and ADAIR, to
consider and report thereon.
FRIDAY, January 17.
_Aggressions on Commerce._
On motion, the galleries were cleared, and the doors of the Senate
Chamber were closed; and, after the considerations of the confidential
business,
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In my Message to both Houses of Congress at the opening of
their present session, I submitted to their attention, among
other subjects, the oppression of our commerce and navigation
by the irregular practices of armed vessels, public and
private; and by the introduction of new principles, derogatory
of the rights of neutrals, and unacknowledged by the usages of
nations.
The memorials of several bodies of merchants of the United
States are now communicated, and will develop these principles
and practices, which are producing the most ruinous effects on
our lawful commerce and navigation.
The right of a neutral to carry on commercial intercourse with
every part of the dominions of a belligerent, permitted by the
laws of the country, (with the exception of blockaded ports and
contraband of war,) was believed to have been decided between
Great Britain and the United States, by the sentence of their
commissioners mutually appointed to decide on that and other
questions of difference between the two nations, and by the
actual payment of the damages awarded by them against Great
Britain for the infractions of that right. When, therefore, it
was perceived that the same principle was revived, with others
more novel, and extending the injury, instructions were given
to the Minister Plenipotentiary of the United States at the
Court of London, and remonstrances duly made by him on the
subject, as will appear by documents transmitted herewith.
These were followed by a partial and temporary suspension only,
without any disavowal of the principle. He has, therefore,
been instructed to urge this subject anew, to bring it more
fully to the bar of reason, and to insist on rights too evident
and too important to be surrendered. In the mean time the evil
is proceeding, under adjudications founded on the principle
which is denied. Under these circumstances the subject presents
itself for the consideration of Congress.
On the impressment of our seamen, our remonstrances have
never been intermitted. A hope existed at one moment of an
arrangement which might have been submitted to, but it soon
passed away, and the practice, though relaxed at times in
the distant seas, had been constantly pursued in those in
our neighborhood. The grounds on which the reclamations on
this subject have been urged, will appear in an extract from
instructions to our minister at London now communicated.
TH. JEFFERSON.
JANUARY 17, 1806.
The message and document therein referred to were in part read, and
ordered to lie for consideration.
_Purchase of Florida._
A confidential message from the House of Representatives, by Messrs.
BIDWELL and EARLY, two of their members, as follows:
Mr. PRESIDENT: We are directed by the House of Representatives, in
confidence, to bring to the Senate a bill, entitled “An act making
provision for defraying any extraordinary expenses attending the
intercourse between the United States and foreign nations;” in which they
request the concurrence of the Senate.
The bill was read and passed to the second reading.
_Ordered_, That the message and bill last read, be considered
confidential, and that secrecy be observed by the members and officers of
the Senate.
FRIDAY, January 24.
JAMES A. BAYARD, appointed a Senator for the State of Delaware, for the
term of six years, commencing on the fourth of March last, produced his
credentials, which were read; and, the oath prescribed by law having been
administered, he took his seat in the Senate.
FRIDAY, January 31.
_Purchase of Florida._
The third reading of the bill, entitled “An act making provision for
defraying any extraordinary expenses attending the intercourse between
the United States and foreign nations,” was resumed; and, on the question
to amend the bill, as follows: After the words “United States,” sec. 1,
insert “for the purpose of obtaining by negotiation, or otherwise, as he
may deem most expedient, the free navigation of the river St. Lawrence,
as His Britannic Majesty’s territory, lying south and east thereof, or
any other territory lying east of the Mississippi, and south of the
aforesaid river St. Lawrence not owned or possessed by citizens of the
United States.”
It was determined in the negative--yeas 10, nays 21, as follows:
YEAS.--Messrs. Adams, Bayard, Bradley, Hillhouse, Pickering, Plumer,
Smith of Vermont, Tracy, White, and Wright.
NAYS.--Messrs. Adair, Anderson, Baldwin, Condit, Fenner, Gaillard,
Gilman, Howland, Kitchel, Logan, Maclay, Mitchill, Moore, Smith of
Maryland, Smith of New York, Smith of Ohio, Smith of Tennessee, Sumter,
Thruston, Turner, and Worthington.
WEDNESDAY, February 5.
The PRESIDENT laid before the Senate the report of the Commissioners of
the Sinking Fund, stating that the measures which have been authorized
by the Board subsequent to their report of 5th February, 1805, so far as
the same have been completed, are fully detailed in the report of the
Secretary of the Treasury to the Board, dated the 4th of the present
month; and in the statements therein referred to, which are herewith
transmitted, and prayed to be considered as part of the report. And the
report was read, and ordered to lie for consideration.
Mr. SMITH of Maryland, from the committee appointed the 15th of January
last, on that part of the Message of the President of the United States
which relates to the spoliation of our commerce on the high seas, and
informs us of new principles assumed by the British Courts of Admiralty,
as a pretext for the condemnation of our vessels in their prize
courts, made report, and the report was read, and ordered to lie for
consideration.
The motion, that it be
_Resolved_, That a committee be appointed to inquire why the
expenditures in the Navy Department, for the year 1805, have
so far exceeded the appropriations for the same, and report
thereon to the Senate;
was resumed and adopted; and ordered that it be referred to the committee
appointed on the 28th January last, to make inquiry into the specific
expenditures of the respective departments, to report thereon.
The bill making provision for the compensation of witnesses who attended
the trial of the impeachment of Samuel Chase, was read the second time,
and ordered to the third reading.
THURSDAY, February 6.
_Purchase of Florida._
The Senate resumed the third reading of the bill, entitled “An act
making provision for defraying any extraordinary expenses attending the
intercourse between the United States and foreign nations;” and,
On motion that the bill, and message from the House of Representatives
accompanying the same, be referred to a select committee, with
instructions to inquire and report to the Senate their opinion, whether
West Florida was or was not included in the cession of Louisiana to
the United States by the treaty with France, concluded on the 30th of
April, 1803, together with the evidence upon which such an opinion may
be supported; it was determined in the negative--yeas 8, nays 23, as
follows:
YEAS.--Messrs. Adair, Adams, Bayard, Hillhouse, Pickering,
Plumer, Tracy, and White.
NAYS.--Messrs. Anderson, Baldwin, Bradley, Condit, Fenner,
Gaillard, Gilman, Howland, Kitchel, Logan, Maclay, Mitchill,
Moore, Smith of Maryland, Smith of New York, Smith of
Tennessee, Smith of Vermont, Stone, Sumter, Thruston, Turner,
Worthington, and Wright.
On motion to postpone the further consideration of the bill at this time,
and to take up the following resolution:
_Resolved_, That the President be requested to lay before the
Senate the instructions given to Messrs. Monroe and Pinckney,
late Ministers of the United States to the Court of Spain,
together with the facts and arguments exhibited by them, in
their negotiation, in support of their claims to territories
eastward of the Mississippi, as far as the river Perdido, and
of territory on the western side of the Mississippi, as far as
the Rio Bravo; the essay of Mr. Cevallos, the Minister of His
Catholic Majesty, in answer to our Ministers, in relation to
the western limits; and any other documents in his possession,
tending to establish the rightful boundaries of Louisiana:
It passed in the negative.
FRIDAY, February 7.
_Purchase of Florida._
The Senate resumed the third reading of the bill, entitled “An act
making provision for defraying any extraordinary expenses attending the
intercourse between the United States and foreign nations;” and,
On motion to postpone the further consideration of the bill at this time,
and take up the following resolution:
_Resolved_, That the President of the United States be
requested to renew our negotiations with the Spanish
Government, in such a manner as may bring every subject in
controversy between the two countries to a speedy termination,
equally advantageous to both:
It passed in the negative.
On motion to strike out of the bill the words “two millions,” section
one, and in lieu thereof, insert “one million;” a division was
called for, and the question on striking out was determined in the
negative--yeas 13, nays 18, as follows:
YEAS.--Messrs. Adair, Adams, Bayard, Bradley, Gilman,
Hillhouse, Logan, Mitchill, Pickering, Plumer, Stone, Tracy,
and White.
NAYS.--Messrs. Anderson, Baldwin, Condit, Fenner, Gaillard,
Howland, Kitchel, Maclay, Moore, Smith of Maryland, Smith
of New York, Smith of Tennessee, Smith of Vermont, Sumter,
Thruston, Turner, Worthington, and Wright.
On motion to amend the bill by inserting after the word “applied,” in the
first section, the words “for the purchase from the Spanish Government
of their territories lying on the Atlantic Ocean and Gulf of Mexico, and
eastward of the river Mississippi,” it passed in the negative--yeas 9,
nays 20, as follows:
YEAS.--Messrs. Adair, Adams, Bayard, Gilman, Hillhouse,
Pickering, Plumer, Tracy, and White.
NAYS.--Messrs. Anderson, Baldwin, Bradley, Condit, Fenner,
Gaillard, Howland, Kitchel, Maclay, Moore, Smith of Maryland,
Smith of New York, Smith of Tennessee, Smith of Vermont, Stone,
Sumter, Thruston, Turner, Worthington, and Wright.
On motion to postpone the consideration of the bill until Monday next, it
passed in the negative.
On motion to agree to the final passage of the bill, it passed in the
affirmative--yeas 17, nays 11, as follows:
YEAS.--Messrs. Anderson, Baldwin, Condit, Fenner, Gaillard,
Howland, Kitchel, Maclay, Moore, Smith of Maryland, Smith of
New York, Smith of Tennessee, Smith of Vermont, Thruston,
Turner, Worthington, and Wright.
NAYS.--Messrs. Adair, Adams, Bayard, Gilman, Hillhouse,
Pickering, Plumer, Stone, Sumter, Tracy, and White.
So it was _Resolved_, That this bill pass.[29]
MONDAY, February 10.
The Senate resumed, as in Committee of the Whole, the consideration of
the amendments reported to the bill to suspend the commercial intercourse
between the United States and the French island of St. Domingo; and,
having amended the report, it was in part adopted, and the bill was
reported to the House accordingly; and the bill having been further
amended,
_Ordered_, That it pass to the third reading as amended.
A message from the House of Representatives informed the Senate that
the House have passed a bill, entitled “An act declaring the assent
of Congress to an act of the General Assembly of the State of North
Carolina;” a bill, entitled “An act declaring the consent of Congress
to an act of the State of South Carolina, passed on the 21st day of
December, 1804, so far as the same relates to authorizing the City
Council of Charleston to impose and collect a duty on the tonnage
of vessels from foreign ports;” also, a bill, entitled “An act to
regulate and fix the compensation of officers of the Senate and House
of Representatives;” in which bills they desire the concurrence of the
Senate.
The bills brought up for consideration were read, and ordered to the
second reading.
Mr. WRIGHT, from the committee to whom was referred, on the 31st of
January last, the bill for the protection and indemnification of American
seamen, reported it without amendment.
Mr. THRUSTON, from the committee to whom was referred, on the 5th
instant, the bill, entitled “An act for altering the time for holding the
circuit court in the district of North Carolina,” reported the bill with
amendments; which were read, and ordered to lie for consideration.
WEDNESDAY, February 12.
_British Aggressions._
The Senate resumed the report of the committee, of the fifth instant, on
that part of the Message of the President of the United States, which
relates to the spoliation of our commerce on the high seas, and of the
new principles assumed by the British Courts of Admiralty, as a pretext
for the condemnation of our vessels, in their prize courts, to wit:
1. _Resolved_, That the capture and condemnation, under the
orders of the British Government, and adjudications of their
Courts of Admiralty, of American vessels and their cargoes,
on the pretext of their being employed in a trade with the
enemies of Great Britain, prohibited in time of peace, is an
unprovoked aggression upon the property of the citizens of
these United States, a violation of their neutral rights, and
an encroachment upon their national independence.
2. _Resolved_, That the President of the United States be
requested to demand and insist upon the restoration of the
property of their citizens, captured and condemned on the
pretext of its being employed in a trade with the enemies
of Great Britain, prohibited in time of peace; and upon the
indemnification of such American citizens, for their losses
and damages sustained by these captures and condemnations; and
to enter into such arrangements with the British Government,
on this and all other differences subsisting between the
two nations, and particularly respecting the impressment of
American seamen, as may be consistent with the honor and
interests of the United States, and manifest their earnest
desire to obtain for themselves and their citizens, by amicable
negotiation, that justice to which they are entitled.
3. _Resolved_, That it is expedient to prohibit by law the
importation into the United States of any of the following
goods, wares, or merchandise, being the growth, produce,
or manufacture, of the United Kingdom of Great Britain and
Ireland, or the dependencies thereof, that is to say: woollens,
linens, hats, nails, looking glasses, rum, hardwares, slate,
salt, coal, boots, shoes, ribbons, silks, and plated and glass
wares. The said prohibition to commence from the ---- day of
----, unless previously thereto equitable arrangements shall be
made between the two Governments, on the differences subsisting
between them; and to continue until such arrangements shall be
agreed upon and settled.
And, on the question to adopt the first resolution, as reported by the
committee, it was determined unanimously in the affirmative--yeas 28.
THURSDAY, February 13.
_British Aggressions._
The report of the committee, made on the 5th instant, on that part of
the Message of the President of the United States which relates to the
spoliation of our commerce, and of the new principles assumed by the
British Courts of Admiralty, was resumed.
Mr. ISRAEL SMITH said that he was extremely sorry that he could not
bring his mind to assent to the second resolution; because he viewed
it of great importance that there should be unanimity upon a subject of
this nature. He was not opposed to it from any constitutional objection,
arising from a belief that the Senate had no right to give their
advice and consent to the Executive as to the course and conditions
upon which they desired that an accommodation might be brought about;
but he was opposed to it from the peculiar impropriety of so doing,
deduced from the whole circumstances of the case, as it now presented
itself for consideration. It would be recollected by the Senate, that
many of our complaints against the British Government were of long
continuance; that they had been the subject of our pointed and repeated
remonstrances, and in a particular manner, the impressment of American
seamen; that, on a former occasion, they had committed vast spoliations
on our commerce, not under the sanction of the laws of nations, as
their subsequent transactions with our Government have acknowledged;
but under the authority of the particular orders of their Government,
thereby subjecting the property of our merchants upon the high seas,
not only to the restrictions and forfeitures incurred by the law of
nations, but also exposing it to all the vexations and forfeitures
growing out of the caprice of British orders of capture. The late
encroachments on our rights as a neutral nation, and which are now the
subject of consideration, are of a nature similar to those we have
before experienced, and proceed from the same unwarrantable cause; and,
further, are continued in full force and operation at the very moment our
Government is pressing upon their consideration the injustice of their
proceedings, by argument too strong and convincing to admit of doubt. And
how are they answered? By procrastination, and hints that the necessity
of the case is a sufficient justification. The Executive, indignant at
this evasion, and despairing of redress by any further appeal to their
justice and magnanimity, has turned to the National Legislature, and
informed them that what remained to be done on this interesting subject
must rest on the wisdom and firmness of Congress.
Mr. ANDERSON.--Mr. President: In discussing the merits of the resolution
now under consideration, it will be necessary that we keep constantly
in view the great principle of the one which has already passed this
House by a unanimous vote, because this second resolution is predicated
upon the principle of the first. In the first we declare, that the
capture and condemnation, under the orders of the British Government,
and adjudication of their Courts of Admiralty, of American vessels and
their cargoes, on the pretext of their being employed in a trade with the
enemies of Great Britain, prohibited in time of peace, is an unprovoked
aggression upon the property of the citizens of the United States,
a violation of their neutral rights, and an encroachment upon their
national independence.
In order to show that the ground we have taken is correct, I will take
leave to refer to a book (entitled An Examination of the British Doctrine
which subjects to capture a neutral trade, not open in time of peace)
ascribed to a gentleman high in office, who has deservedly acquired great
celebrity in the political world. It will be found that the principle
contended for in the resolution I have cited, obtained as early as the
first rise of regular commerce, and was even reduced to system as early
as 1338. To this doctrine Great Britain acceded by treaty with Sweden,
in 1655, and afterwards, in 1674, she actually claimed and enjoyed the
benefit of a free trade, she being at that time in peace and the Dutch
in war with France. With what kind of pretext can Great Britain pretend
to deprive us of the exercise of the very rights which she herself has
claimed and exercised, upon precisely the same principles? Besides,
those neutral rights have, by constant and very long usage, become the
established law of nations, and have from time to time been ingrafted
into many treaties even where Great Britain was herself a party. Upon
this doctrine, thus sustained, we request the President to demand and
insist upon the restoration of the property of our citizens, captured
and condemned on the pretext of its being employed in a trade with the
enemies of Great Britain, prohibited in time of peace, and upon the
indemnification of such American citizens for their losses and damages
sustained by these captures and condemnations.
It has been objected that the language of this resolution is too strong,
that the words _demand_ and _insist_ go too far; and that the absolute
restoration of our vessels, &c., will, by these words being retained, be
made _sine qua non_ of an accommodation with Great Britain. If, sir, we
were to express ourselves in less forcible language, we should, in my
opinion, subvert our own principles, and recede from the high ground we
have taken, which might eventually radically destroy our neutral rights,
and completely paralyze our commerce.
The words _demand_ and _insist_ are diplomatic, and as such most
proper to be used, and the more so, as they seem to be appropriate to
the principle of the first resolution. But, Mr. President, the latter
part of this resolution, by which indemnification may be made, and new
arrangements entered into with Great Britain, so far ameliorates those
precedent words that the President will possess ample powers, according
to a true exposition of the whole taken together, and he will not, in my
opinion, be trammelled in the manner the gentleman from Ohio conceives.
In settling national differences, it has ever been necessary in some
points to give a little, and in others to take, according to the peculiar
circumstances upon which the negotiation might happen to turn; either
upon a point of national honor, or an interesting point of national
commerce, or both so connected as not well to be severed.
Mr. MITCHELL said he hoped the resolution would be adopted in its full
extent. On this subject he differed wholly from the honorable gentleman
from Vermont, (Mr. ISRAEL SMITH.)
As the proposition recommended to the Senate by the select committee was
now before them in its most broad and extensive sense, he should apply
his remarks to the principle, rather than to the form of the resolution
under debate.
Toward the end of 1803, more than half the articles of the treaty between
our Government and that of Great Britain had ceased. Since that event
commercial intercourse had been carried on by the two nations, under
their respective laws, without any convention or pact between them.
Inconveniences had been experienced in various ways from that time to
the present. An attempt indeed had been made two years ago to remove a
considerable part of them by a repeal of the countervailing duties; but
that effort not corresponding with the feelings of the nation, had been
relinquished.
The war which was rekindled in Europe soon after the expiration of
the temporary articles of the treaty had embarrassed the commerce of
the great maritime powers, and thrown into the hands of neutrals an
extraordinary proportion of the colonial and carrying trade. The citizens
of the United States, among others, had profited by the opportunity, and
engaged extensively in this neutral commerce. But it had been the policy
of Great Britain, the strongest maritime nation among the belligerents,
to interrupt this intercourse of neutrals with the colonies of her
colonies, as if they had been her own colonies. A series of outrageous
proceedings had been the result; such as had excited the most lively
indignation against them from Maine to Georgia, and roused the nation
with one voice to resist and repel them.
Mr. BAYARD.--Mr. President, if there be any objection to the resolution
now before us, it is that it shelters the Executive Government from that
responsibility as to its measures which properly ought to attach to it.
The duty prescribed by the resolution is of an Executive nature, and
the President is charged with the care of those interests for which the
resolution provides. By prescribing a course of conduct to the Executive,
we release that branch of Government from responsibility as to the event,
and take it upon ourselves. But, sir, though I feel this objection, yet
at the present moment it is outweighed by other considerations. The state
of our public affairs is critical, and at such a time I think it becomes
every branch and member of the Government to co-operate with cordiality
and zeal in support of each other, and to strive to do more rather than
less than their respective duty.
The design of this resolution, sir, presents itself to my mind in a very
different point of view from that in which it appears to the gentleman
from Vermont, (Mr. SMITH.) That honorable member is opposed to it,
because he thinks it gives just cause of offence to the President: that
we prescribe to the President a duty which he ought certainly to perform
without our injunction, and of consequence we betray doubts that he will
do what belongs to his office without our interference.
For my part, sir, I do not consider the resolution as intended in any
degree for the President, but as designed for the British Government. I
suppose without the resolution the President would take the course which
it marks out. But we intend to manifest by it, that it is not simply
the opinion of the President that specific redress should be granted
for the wrongs we have suffered, but that it is the concurrent sense of
this branch of the Government, that such redress should be insisted on.
I do not mean that we should be considered as offering an empty menace
to the British cabinet, but a demonstration of the union of different
branches of our Government in demanding satisfaction for the wrongs done
us. Foreign Governments calculate much on our divisions, our union will
disappoint those calculations.
On motion, the Senate now adjourned.
FRIDAY, February 14.
_British Aggressions._
The Senate resumed the consideration of the report of the committee, made
on the 5th instant, on that part of the Message of the President of the
United States which relates to the violation of neutral rights, and the
impressment of American seamen.
The second resolution being still under consideration, as follows:
“2. _Resolved_, That the President of the United States be
requested to _demand and insist upon the restoration of the
property of their citizens, captured, and condemned, on the
pretext of its being employed in a trade with the enemies
of Great Britain, prohibited in time of peace: and upon the
indemnification of such American citizens, for their losses
and damages sustained by those captures and condemnations: and
to_ enter into such arrangements with the British Government,
on this and all other differences subsisting between the two
nations, (and particularly respecting the impressment of
American seamen,) as may be consistent with the honor and
interest of the United States, and manifest their earnest
desire to obtain for themselves and their citizens, by amicable
negotiation, that justice to which they are entitled.”
Mr. WORTHINGTON.--On further consideration of the resolution now before
the Senate I confess I feel more opposed to it, and do believe, on the
whole, it will be best not to pass it in its present form. The resolution
must mean something, or it must mean nothing. It must intend to convey to
the President the opinions and advice of this body, or not to convey it.
Now, sir, if it is intended to convey to the President the opinion and
advice of the Senate, which is certainly my understanding of it, I beg
gentlemen to reflect a little before they adopt it. The advice of this
Senate I trust will never be given to the President without having the
desired effect; and let me add, sir, that from the intimate connection
which exists between this and the Executive branch of the Government,
I must believe that the President would not feel himself justified, nor
would he be willing to take so much responsibility on himself as entirely
to reject it. Sir, I could not justify him if he did. We are equally
responsible with him in our executive capacity, and can we for a moment
believe that he would act contrary to the decided opinion of the Senate,
who can at all times control or defeat him by rejecting a treaty made
contrary to their advice and opinions? What, sir, is the object of the
resolution?
We request the President “to demand and insist upon the restoration
of the property of their citizens, captured and condemned on the
pretext of its being employed in a trade with the enemies of Great
Britain, prohibited in time of peace; and upon the indemnification
of such American citizens for their losses and damages sustained by
these captures and condemnations:” and afterwards “to enter into
such arrangements with the British Government, on this and all other
differences subsisting between the two nations, (and particularly
respecting the impressment of American seamen,) as may be consistent
with the honor and interests of the United States, and manifest their
earnest desire to obtain for themselves and their citizens, by amicable
negotiation, that justice to which they are entitled.”
Mr. ADAIR.--Mr. President, the motion before the Senate is to recommit
the resolution to a special committee. Gentlemen in favor of the
resolution as it stands, have called upon us to point out the alterations
we wish to make in it, as a cause of commitment; I will do so by stating
my objections to it in its present shape. The first resolution on the
paper which I hold in my hand, and which met with a unanimous vote of
the Senate two days past, contains a mere declaration of their opinion
on an abstract principle; to this resolution I fully and freely assent,
although I did not vote for it, being that day unwell and absent. But
this second resolution, if it is to have any effect at all, is meant to
convey an instruction to the President of the United States. It contains
a request to him, not only that he will endeavor to obtain an adjustment
of our differences by treaty, but that prior to this he will “demand and
insist upon the restoration of the property of our citizens captured
and condemned on the pretence of its being employed in a trade with the
enemies of Great Britain, prohibited in time of peace; and upon the
indemnification of such American citizens for their losses and damages
sustained by these captures and condemnations;” that he will enter into
arrangements, &c. This, Mr. President, is the part of the resolution I
object to. It is going too far. It is circumscribing the powers of the
President, and tying him down to a particular point. It is making that
the _sine qua non_, the basis on which alone he is to treat; at least
it is doing this so far as an opinion of the Senate, expressed in this
way, can do it. It really looks to me, as if, on this particular point
of the restitution, we were afraid to trust our Chief Magistrate. I
presume there is not a member who hears me, who does not fully believe
the captures and condemnations alluded to in the resolution were unjust;
that they are an infringement of our rights; and that we are entitled
to restitution. But let it be remembered that these condemnations are
the solemn decisions of a court of very high authority in Great Britain;
a court that, it is well known, acts under the counsels (if not the
control) of the cabinet. May we not then reasonably suppose that the
British Government are as fully assured (in their own minds) that these
condemnations are just and warranted, under the law of nations, as we
are that they are unjust and unwarranted; and that they will be as
unwilling to acknowledge in the face of the whole world that they have
been wantonly robbing us of our property, as we will be to acknowledge
that we have paid so much without a cause? It has been well observed by
an honorable member from Tennessee, that in forming commercial treaties
of this kind, there will be various points to consider, and it may not be
necessary to contend for strict justice in every punctilio; arrangements
or treaties, when there are existing differences to settle, must always
be a bargain of compromise and forbearance; in one point we may give
a little, that we may obtain an equivalent in another. So it may turn
out in settling our disputes with Great Britain. Why then are we not
satisfied with expressing our opinion on the great principle of right;
and leave it altogether with our Chief Magistrate to enter into and point
out the details?
Messrs. J. QUINCY ADAMS, SAMUEL SMITH, PICKERING, TRACY, and MACLAY,
delivered their sentiments.
The motion to recommit the resolution for the purpose of amending it, was
lost--yeas 15, nays 16.
Mr. WORTHINGTON then moved to strike out the words in _italics_, from the
second to the eleventh line.
Messrs. S. SMITH, and WHITE, opposed the motion, which was disagreed
to--yeas 13, nays 16, as follows:
YEAS.--Messrs. Adair, Baldwin, Bradley, Gaillard, Howland,
Logan, Maclay, Moore, Plumer, Smith of Vermont, Sumter, Turner,
and Worthington.
NAYS.--Messrs. Adams, Anderson, Bayard, Gilman, Hillhouse,
Kitchel, Mitchill, Pickering, Smith of Maryland, Smith of New
York, Smith of Ohio, Smith of Tennessee, Thruston, Tracy,
White, and Wright
Mr. THRUSTON moved to postpone the resolution, for the purpose of
previously taking up and acting upon the third, which prohibits the
importation into the United States of a variety of articles, the growth,
produce, or manufactures of Great Britain, after the ---- day of ----
next, unless equitable arrangements shall be made between the United
States and Great Britain.
This motion was lost--yeas 13.
Messrs. ISRAEL SMITH and BRADLEY then spoke against agreeing to the
resolution. The principal ground taken by them was that it became the
Senate to take stronger ground, and to adopt vigorous measures, before
they requested the Executive to resume negotiation.
Mr. TRACY advocated the resolution. He did not think negotiation
exhausted. He thought it became the Senate to make one further attempt
towards negotiating our differences, before a resort was had to warlike
measures. The President would be enabled to take this step, by the
Senate, who were a branch of the war-declaring power, expressing their
support of the measures he had taken, at the same time that they
requested a renewal of the negotiation.
Mr. MOORE moved to strike out the words “and insist;” which motion
prevailed.
Mr. WORTHINGTON said that, so modified, he should vote for the resolution.
Mr. KITCHEL observed that he was sorry to intrude upon the patience of
the Senate at that late hour; but the observations of the gentleman who
had just sat down induced him to beg their indulgence for a few moments.
The gentleman, in the course of his observations, seems to have made two
propositions as the ground of his objection, viz: that the resolution now
under consideration contains a censure upon the President, as not having
done his duty in negotiating; and that by passing it we are going to
sacrifice the honor and interests of the United States and its citizens.
Mr. President, I would ask in what manner we shall do either? How shall
we censure the President? He has negotiated until there appears no
prospect of obtaining that justice to which we are entitled; and he has
now submitted the matter to Congress to pursue such measures as shall
appear to them prudent.
And what are we about to do? Sir, we have already unanimously passed
one resolution, in which we say that the capture and condemnation of
the vessels and cargoes of our citizens is an unprovoked violation of
our independence, and an aggression upon the property of our citizens.
And if that declaration is correct what are we to do further? Are we,
upon the strength of that declaration, to sit down and fold our hands
together, and expect Britain to do us justice, or are we to declare war?
Sir, are we prepared at this moment to declare war? Will it be wise? Will
it be prudent, without one effort to avoid it, with all its horrors of
blood and destruction? Are the people now prepared to meet it, without
our making one more attempt to negotiate? Will they say we have acted
wisely? I believe not. Sir, we are one component part of Congress, who
have the sole power of declaring war; and by this resolution we are going
to say to Britain--not by ourselves, for we are not by the constitution
authorized to speak to foreign nations in this way; but we are about to
request the President, in our behalf, and in our name, and in the name
of the whole people of the United States, to say to Britain--you have
injured us by your unprovoked aggressions, and we demand satisfaction.
We can bear these insults no longer; therefore, make us compensation for
past injuries, and do us justice in future; and we are willing still
to be friends. Wherein does this censure the President? He has pursued
negotiation until he finds it unavailing. We now ask of him to make one
last effort in our behalf, before we appeal to the last resort of war,
and I trust we shall arm him with power that will give energy to this
last negotiation. And wherein are we going to sacrifice the honor of the
United States or the interests of the citizens? Does it sacrifice our
honor to endeavor to settle our differences in an amicable way, rather
than to fly to arms and deluge the earth with blood? Will it fix a stigma
upon us in the eyes of any rational men or nations? I believe not. And
how are we going to sacrifice the interests of our citizens? Do we do it
by demanding justice for them of Britain? I believe that they themselves
will not view it in that light, when they see it followed by the third
resolution, which I hope will be passed. And, indeed, had it not have
been for the expectations of that resolution being carried into effect,
in such a manner as to give energy to this, I should have withheld my
vote from the first. But, under the full expectation that the third
resolution will pass, and as I do not believe it contains any censure
upon the President, and as I believe it will do honor to the United
States and will have a tendency to secure reparation to our citizens, I
shall cheerfully give it my vote.
Messrs. LOGAN and PICKERING spoke in favor of the resolution, and Mr.
ISRAEL SMITH against it; when, after some verbal amendments, the question
was taken upon it, by yeas and nays, and the resolution carried--yeas 23,
nays 7, as follows:
YEAS.--Messrs. Adams, Anderson, Baldwin, Bayard, Gaillard,
Gilman, Hillhouse, Howland, Kitchel, Logan, Maclay, Mitchill,
Moore, Pickering, Smith of Maryland, Smith of New York, Smith
of Ohio, Smith of Tennessee, Tracy, Turner, White, Worthington,
and Wright.
NAYS.--Messrs. Adair, Bradley, Plumer, Smith of Vermont, Stone,
Sumter, and Thruston.
So it was _Resolved_, That the President of the United States be
requested to demand the restoration of the property of their citizens
captured and condemned on the pretext of its being employed in a trade
with the enemies of Great Britain, prohibited in a time of peace; and
the indemnification of such American citizens, for their losses and
damages sustained by these captures and condemnations; and to enter
into such arrangements with the British Government, on this and all
other differences subsisting between the two nations, (and particularly
respecting the impressment of American seamen,) as may be consistent
with the honor and interests of the United States, and manifest their
earnest desire to obtain for themselves and their citizens, by amicable
negotiation, that justice to which they are entitled.
WEDNESDAY, February 19.
_Lewis and Clarke’s Expedition._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
In pursuance of a measure proposed to Congress, by a Message
of January 18th, 1803, and sanctioned by their approbation,
for carrying it into execution, Captain Meriwether Lewis, of
the first regiment of infantry, was appointed, with a party
of men, to explore the river Missouri from its mouth to its
source, and crossing the high lands by the shortest portage,
to seek the best water communication thence to the Pacific
Ocean; and Lieutenant Clarke was appointed second in command.
They were to enter into conference with the Indian nations on
their route, with a view to the establishment of commerce with
them. They entered the Missouri, May 14, 1804, and on the 1st
of November, took up their winter quarters near the Mandan
towns, sixteen hundred and nine miles above the mouth of the
river, in latitude 47° 21´ 47´´ north, and longitude 99° 24´
45´´ west, from Greenwich. On the 8th of April, 1805, they
proceeded up the river in pursuance of the objects prescribed
to them. A letter of the preceding day, April 7, from Captain
Lewis, is herewith communicated. During his stay among the
Mandans, he has been able to lay down the Missouri, according
to courses and distances taken on his passage up it, corrected
by frequent observations of longitude and latitude, and to add
to the actual survey of this portion of the river, a general
map of the country between the Mississippi and Pacific, from
the 34th to the 54th degrees of latitude. These additions
are from information collected from Indians, with whom he
had opportunities of communicating during his journey, and
residence with them. Copies of this map are now presented to
both Houses of Congress. With these, I communicate, also a
statistical view, procured and forwarded by him, of the Indian
nations inhabiting the Territory of Louisiana and the countries
adjacent to its northern and western borders, and of other
interesting circumstances respecting them.
TH. JEFFERSON.
FEBRUARY 19, 1806.
THURSDAY, February 20.
_Trade with St. Domingo._
The Senate resumed the third reading of the bill to suspend the
commercial intercourse between the United States and the French island of
St. Domingo.
Mr. WHITE.--Mr. President, it will be recollected that the bill, as
originally introduced on this subject by the gentleman from Pennsylvania,
(Mr. LOGAN,) was variant in every shape and feature from that now before
us. The first bill I considered altogether impotent, and had little or no
concern as to its fate; but that now under consideration, as presented
by the committee, is of a very different complexion, and goes the full
length of interdicting all commerce between this country and the island
of St. Domingo.
Our local situation, Mr. President, gives to us advantages in the
commerce of the West Indies over all the nations of the world; and it
is not only the right and the interest, but it is the duty of this
Government, by every fair and honorable means, to protect and encourage
our citizens in the exercise of those advantages. If, in other respects,
we pursue a wise policy, and remain abstracted from the convulsions of
Europe, that for many years to come are not likely to have much interval;
enjoying, as we shall, all the advantages of peace-wages, peace-freight,
peace-insurance, and the other peace privileges of neutral traders, we
must nearly acquire a monopoly of this commerce. We can make usually a
treble voyage; that is, from this continent to the West Indies, thence
to Europe, and back to America again, in the time that the European
vessels are engaged in one West India voyage. This circumstance of
itself, properly improved, at a period perhaps not very remote, whenever
others of those islands may be released from, or refuse longer submission
to their present colonial restrictions upon commerce, will enable us
to rival even the British in transporting to the markets of Europe the
very valuable productions of the West Indies, such as sugar, molasses,
coffee, spirits, &c. Again, sir, I state nothing new when I say that the
produce of this country is essential to the West India islands, and the
facility with which we can convey it to them, must at all times enable
us to furnish them much cheaper than they can be furnished by any other
people. It requires not indeed the spirit of prophecy to foretell, that
the time must come when the very convenient and commanding situation we
occupy, in every point of view, relative to the most valuable of those
islands, will place in our hands the entire control of their trade; that
is, if we pursue a wise and politic system of measures in relation to
them; holding fast upon all the great advantages nature has given us, and
promptly availing ourselves of such others as circumstances may throw
in our way. As a source of public revenue; as a means of increasing
our national capital; and, though last, not least, as a nursery for
our seamen, the importance of this commerce to the United States is
incalculable, and should be guarded with a jealous eye; we should never
suffer our rightful participation in it to be diminished by others, much
less have the folly to diminish it ourselves. Those islands are situated
in our very neighborhood, and but for the arbitrary colonial restrictions
upon commerce, to which they are now subject, no other nation could hold
a successful competition with us in their markets, unless some such
ill-judged, baleful, anti-commercial measure, as has now fallen to the
genius of the gentleman from Pennsylvania to contrive, should enable them
to do so.
I will now, sir, notice the relative hostile situations of France and St.
Domingo, and see how far gentlemen are borne out in their positions--that
the people of St. Domingo can be considered only as revolted slaves,
or, at best, as French subjects now in a state of rebellion; that they
are nationally in no respect separated from France; that to trade with
them is a violation of the laws of nations, and that we have no right to
do so. This, so far as I could understand them, forms a summary of the
points that have been urged in support of the present measure, and in
opposition to the trade; each of which deserves some attention. If I am
wrong in these points, the friends of the bill will please now to correct
me; and I hope gentlemen will become convinced during the discussion,
that the case which so many of them have stated, of any foreign power
succoring and protecting the revolted slaves of the Southern States,
is not the parallel of that before us. As to the first point, it is to
be recollected, that some years past, to quote from high authority,
“during the agonizing spasms of infuriated man, seeking through blood
and slaughter his long lost liberties,” when our enlightened sister
Republic of France was, in her abundant kindness, forcing liberty upon
all the world, and propagating the rights of man at the point of the
bayonet, in one of her paroxysms of philanthropy, she proclaimed, by a
solemn decree of her Convention, the blessings of liberty and equality
to the blacks of St. Domingo too; invited them to the fraternal embrace,
and to the honors of a Conventional sitting. The wisdom or the policy of
this proceeding, it is not my business to inquire into, but it certainly
affords some excuse, if any be necessary, for the subsequent conduct of
those unfortunate people. The decree abolishing for ever slavery in the
West Indies, (French,) and extending all the blessings of citizenship
and equality to every human creature, of whatever grade or color, then
under the Government of France, passed the Convention in February,
seventeen hundred and ninety-four. The existence of such a paper I did
not expect would have been doubted here till the gentleman from New
Jersey (Mr. Kitchel) actually denied it. In the new Annual Register, of
ninety-four, is the following account of it, page 347: “La Croix rose
to move the entire abolition of slavery in the dominions of France. The
National Convention rose spontaneously to decree the proposition of
La Croix. On motion of Danton, on the 5th, the Convention resolved to
refer to the Committee of Public Safety the decree of emancipation, in
order that they might provide the most effectual and safest means of
carrying it into effect.” But here is the decree itself, as taken from
the Gentleman’s Magazine, and furnished to me by a friend: “National
Convention, 1794, February 4th. The National Convention decrees
that slavery is abolished in all the French colonies. It decrees in
consequence that all the inhabitants of the French colonies, of whatever
color, are French citizens, and from this day forward shall enjoy those
rights which are secured to them by the declaration of rights, and by
the constitution.” And this same principle the Convention frequently
recognized, by receiving at their bar, in the most complimentary manner,
various deputations of blacks from the West Indies, thanking them for the
boon conferred upon them. One of these instances, among many others, I
will submit, as a curiosity in legislative proceedings, to the Senate:
“National Convention. Order of the day. A band of blacks of both sexes,
amidst the sound of martial music; and escorted by a great band of
Parisians, came into the hall to return thanks to the Legislature for
having raised them to the rank of men. The President gave the fraternal
kiss to an old negress, 114 years old, and mother of eleven children.
After which she was respectfully conducted to an armed chair and seated
by the side of the President, amid the loudest bursts of applause.” By
the original decree, the liberty of the blacks was established. This
ceremony, it seems, was only to show their equality; and certainly, sir,
the President could not have given a much stronger, or a much kinder
evidence of it to the old lady. But, Mr. President, the claim of those
people to freedom does not rest here. I have in my hand a document
of much more recent date, and even more to be relied upon. It is the
proclamation of the then First Consul, now the Emperor and King, to the
people of St. Domingo, when General Le Clerc went there, in the winter of
1801, at the head of the French forces, which I will read. First, a short
proclamation of General Le Clerc’s:
LIBERTY. EQUALITY.
PROCLAMATION.
On board the Ocean, off the Cape, the 15th of Pluviose, 10th
year of the French Republic, (Feb. 6, 1802.)
_Le Clerc, General-in-chief of the Army of St. Domingo, Captain
General of the Colony, to the inhabitants of St. Domingo_:
Inhabitants of St. Domingo! Read the proclamation of the
First Consul of the Republic. It assures to the blacks that
liberty for which they have so long fought; to commerce and
to agriculture that prosperity without which there can be no
colonies. His promises will be faithfully fulfilled; to doubt
it would be a crime.
The General-in-chief,
LE CLERC, _Captain General_.
By order of the General-in-chief,
LENOIR.
* * * * *
Extract from the Register of the Deliberations of the Consuls
of the Republic, Paris, the 17th Brumaire, 10th year of the
French Republic, one and indivisible, (November 8, 1801.)
PROCLAMATION.
_The Consuls of the Republic to the Inhabitants of St. Domingo._
Inhabitants of St. Domingo! Whatever may be your origin and
your color, ye are all Frenchmen; ye are all free, and all
equal before God and the Republic.
France, like St. Domingo, has been a prey to factions, and torn
by civil and foreign wars. But all is changed! Every people
have embraced Frenchmen, and have sworn to them peace and
friendship! All Frenchmen have likewise embraced each other,
and have sworn to be all friends and brothers. Come ye, also,
and embrace Frenchmen, and rejoice to see your friends and your
brothers of Europe.
The Government sends you the Captain General, Le Clerc. He
carries with him great forces to protect you against your
enemies, and against the enemies of the Republic. If it
should be told you these forces are intended to tear from you
your liberty, answer, the Republic has given us liberty. The
Republic will not suffer that it should be taken from us. Rally
round the Captain General; he restores you abundance and peace.
Rally round him; he who shall dare to separate himself from
the Captain General will be a traitor to his country, and the
vengeance of the Republic shall devour him as fire devours your
dried canes.
Given at Paris, in the palace of Government, the 17th Brumaire,
10th year of the French Republic.
BONAPARTE.
By the First Consul,
H. B. MARET, _Secretary_.
A true copy,
LE CLERC, _Captain General_.
This, sir, is proof irresistible; after which it can never be said
that the liberation of those people has been the rash act, or the mere
ebullition, of the heat and convulsion of a revolution. We have here
their liberty solemnly recognized and proclaimed to the world eight
years afterwards by the man who was then and still is at the head of the
French Government; or rather, who is now the Government itself. I cite
these papers to show that the French have now no claim, either in right,
in justice, or in law, to any portion of the people of St. Domingo as
slaves; that they are individually free, if the highest authorities in
France could constitute them so, which will surely not be questioned; and
in order to rebut a fallacious idea that has been taken up, and urged by
some, that our merchants are conducting this commerce with slaves, the
property of freemen, and not with freemen themselves, thus ingeniously
endeavoring to draw a distinction between the situation of St. Domingo
and that of any other colony that has ever heretofore attempted to
separate itself from the mother country; to make theirs, according to
the language of the gentleman from Virginia, (Mr. MOORE,) a totally new,
unprecedented case, and in this manner to take them out of the humane
provisions of the laws of nations. I grant, sir, their case does form
a distinction from any other, and in this it consists: the people of
St. Domingo are fighting to preserve not only their independence as a
community, but their liberty as individuals; to prevent a degradation
from the exalted state of freemen to the debased condition of slaves,
struggling against the manacles that have been forged for them by the
lawless ambition of power. We are told, however, they are at least not
free as a people, as a body politic; but in such a state of rebellion
that no nation has a right to trade with them.
Let us now, Mr. President, attend to the present state of St. Domingo;
but first to the circumstances that have led to it, and see how far
this doctrine will apply. After the bands of the political society that
had connected France and her colonies together were broken asunder;
when the old Government of that country was completely dissolved, and
one usurpation succeeded day after day to the places and to the vices
of another; when the axe of the guillotine had extinguished the magic
lustre of royalty, and even that grace and beauty, [a very superb
likeness of the late Queen of France was hanging directly before him,]
that had reigned so long unrivalled, the pride and idol of the nation,
had to yield herself to the rudeness of a common executioner, and was
humbled in death before a scoffing multitude; when the constitution that
had been recently established by the voice of the nation, and under
which it was hoped they would flourish and be happy, had fallen into
the ruthless fangs of the Jacobins, and the patriots who supported it
had found refuge in exile, or mingled their blood upon the scaffold;
when all rightful, civil, and legal authority was at an end, and the
Revolutionary sabre alone gave law, the people of St. Domingo, as did the
people of these States under other circumstances, declared themselves
free and independent, determined to take their stand among the nations
of the world, and now refuse allegiance to any foreign power. They have
organized a Government for themselves; they are _de facto_ the governors
of the country, and in every respect act as an independent people. They
have waged, and carried on with France, for many years, a most serious
war, in defence of what they say are their rights; and the French, by
force of arms, have been endeavoring to subjugate them. And now let me
ask if the United States, or any other power upon earth, is competent to
decide this great controversy between them? They each claim to be free
and independent, and therefore acknowledge no superior; the struggle
is between themselves, and no other nation has a right to interfere by
direct acts of hostility, or by any commercial restrictions that can go
to effect injuriously either of the parties, and to do so is a departure
from neutral ground, and an infraction of the laws of nations, as I think
will be within my power to show from the most incontestable authorities.
For this purpose I will advert again to _Vattel_.
_Vattel_, b. 2, ch. 4, sec. 56, says: “When the bands of the political
society are broken, or at least suspended between the sovereign and his
people, the contending parties may then be considered as two distinct
powers; and since they are both equally independent of all foreign
authority, nobody has a right to judge between them. Either may be in the
right.” B. 3, ch. 15, sec. 295, says: “When a nation becomes divided into
two parties absolutely independent, and no longer acknowledging a common
superior, the State is dissolved, and the war between the two parties
stands on the same ground in every respect as a public war between two
different nations.” Again, sir, section 293 of the same book and chapter
says: “A civil war breaks the bands of society and Government, or at
least suspends their force and effect. It produces in the nation two
independent parties, who consider each other as enemies, and acknowledge
no common judge. Those two parties, therefore, must necessarily be
considered as thenceforward constituting, at least for a time, two
separate bodies, two distinct societies. Though one of the parties may
have been to blame in breaking the unity of the State, and resisting
the lawful authority, they are not the less divided in fact. Besides,
who shall judge them? Who shall pronounce on which side the right or
the wrong belongs? On earth they have no common superior. They stand,
therefore, in precisely the same predicament as two nations who engage in
a contest, and, being unable to come to an agreement, have recourse to
arms.”
We have been exultingly told by Mr. Talleyrand, and it has been echoed
from this Chamber by the gentleman from New York, (Mr. MITCHILL,) that
even the British consider St. Domingo a colony of France, and upon
this principle condemn our vessels for trading there. I grant that
such a pretext, among many others, has been resorted to in order to
destroy our commerce; I grant that such an infringement of our neutral
rights has been committed, and the reasons that have induced it must be
obvious to the most superficial observer. The British, with a monopoly
of this commerce themselves, and those same Englishmen who now condemn
our vessels for trading to St. Domingo, upon the ground of its being
a French colony, heretofore, when it suited their purposes, so far
acknowledged the independence of those very people as to enter into
a Commercial Treaty with them, and are now not only in the constant
practice of trading there themselves, but of granting licenses to others
to do so. I hope, however, the day has not come when our commerce is
to be under the control of the Lords of the Admiralty, or our national
rights dependent upon the judicial opinions of Sir William Scott; and
the learned gentleman from New York must indeed have been pressed with
the barrenness of his case when he had to resort to such an argument,
derived from such a source. The gentleman from New Jersey, (Mr. KITCHEL,)
I must in candor say, has, in support of the present measure, assumed
premises totally new and different. His reasons, like most of those we
have been accustomed lately to hear, were in the true style of modern
legislation, enveloped in all the mysteries of secrecy. He tells us
that we had better give up this commerce, because it is not valuable.
Where the gentleman obtained this piece of information is utterly beyond
the comprehension of my understanding: none such, certainly, has ever
been laid before us; nor did he condescend to give us a clue to its
source; but as if sufficient to urge it upon our faith with all the
confidence of apostolic inspiration--to us who doubted, he refused even
an opportunity of acquiring knowledge through any other channel; voted
against the propositions of my friend and colleague, which went to ask
of the Executive the actual state of this commerce, and to ascertain
its real value. To do strict justice to the gentleman’s argument, it is
simply this, that whenever any foreign power may please to demand of us
the surrender of a right, however just and honest it may be; however it
may comport with the dignity of the Government to preserve it; if, in a
pecuniary point of view, if upon a cool peddling calculation of risk,
profit, and loss, it cannot be deemed of high value, we are at once to
give it up. This argument, I will confess, is worthy of the bill. So
striking, and of such a kind is their affinity, that they seem peculiarly
calculated to expose each other, and to excite in every mind valuing the
honor, the dignity, and the character of the nation, like sentiments of
disgust. The case cited by the gentleman from Pennsylvania, (Mr. MACLAY,)
of the Indians, I think in 1755, under the avowed authority, direction,
and support of the French Government, ravaging our frontiers, surely can
have no relation to the question before us. Has this Government ever
furnished arms and ammunition, or done any other act in order to assist
and encourage the people of St. Domingo in attacking the countries of
their neighbors? I cannot conceive what subject that might have been
before Congress during our present session, the gentleman must have had
in his mind, to which he supposed this case could apply; certainly not
the present; it is infinitely more distant in point of analogy than
of date. I have been exerting my imagination to discern any object or
bearing it can have, that I might endeavor to meet it, but the total
impossibility of the one, will save me the trouble of the other.
I rejoice that the President has expressed, in his late Message, a
disposition to take into the protection of the Government the commerce
of the United States, though little has yet been done, or attempted.
This project of the gentleman from Pennsylvania I hope forms no part of
the new system, and he would have acted wisely before he submitted it to
have examined better its consequences, and to have looked for a moment at
the present condition of our commerce. What is it? Plundered upon every
coast and in every sea, your flag, instead of being a protection against
insult, seems to have become an invitation to injury. The British, the
French, and the Spaniards, in the ratio of their force, treat us with
like indignities; this is the only point in which they can agree. The
former have adopted, and openly avow a system of measures that, if not
counteracted, must go to deprive us of the most important of our neutral
rights; while the two latter are anxiously rivalling each other in the
most lawless and piratical depredations upon our defenceless trade;
even the commissioned vessels of our Government have not been suffered
to pass the high seas without insult and violence. The British and the
French, whenever it suits their views, blockade our very ports; the
British take their position off New York, so as to be convenient to the
courts of Halifax; and our friends, the French, to whom the gentleman
from Pennsylvania has told us we should be so particularly civil, take
occasionally into their holy keeping, the commerce of Charleston and
New Orleans, so as to be at a convenient distance from the British. Our
trade with St. Domingo, indeed, the French have not been able to stop,
nor have even the British yet assumed to themselves this maritime right;
but the gentleman from Pennsylvania, in his great good faith and abundant
charity, will now anticipate their wishes, and do it for them. This,
indeed, surpasses even Christian meekness; it is not only, when smitten
upon one cheek, turning the other also, but chastening ourselves with
more than monkish severity, in the most vulnerable part.
On motion, by one of the majority, to reconsider the fourth section which
restricts the operation of the law to one year, it passed in the negative.
On motion, to agree to the final passage of the bill, it was determined
in the affirmative--yeas 21, nays 8, as follows:
YEAS.--Messrs. Anderson, Baldwin, Bradley, Condit, Fenner,
Gaillard, Gilman, Howland, Kitchel, Logan, Maclay, Mitchill,
Moore, Smith of Maryland, Smith of New York, Smith of Ohio,
Smith of Tennessee, Sumter, Turner, Worthington, and Wright.
NAYS.--Messrs. Adams, Bayard, Hillhouse, Pickering, Plumer,
Stone, Tracy, and White.
So it was _Resolved_, That this bill pass, that it be engrossed, and
that the title thereof be “An act to suspend the commercial intercourse
between the United States and certain parts of the island of St. Domingo.”
MONDAY, March 3.
_Privileges of Foreign Ministers._
The Senate resumed, as in Committee of the Whole, the amendment reported
by the select committee to the bill to prevent the abuse of the
privileges and immunities enjoyed by foreign Ministers within the United
States.
Mr. ADAMS.--There are two points of view, Mr. President, in which it
appears to me to be important that the provisions of this bill should be
considered--the one as they relate to the laws of nations, and the other
as they regard the Constitution of the United States. From both these
sources have arisen inducements combining to produce conviction upon my
mind of the propriety, and indeed the necessity of some measure similar
in principle to that which I have had the honor to propose. I shall take
the liberty to state them in their turns, endeavoring to keep them as
distinct from each other as the great and obvious difference of their
character requires, and that their combination on this occasion may
appear in the striking light which may render it the most effectual.
By the laws of nations, a foreign Minister is entitled, not barely to
the general security and protection which the laws of every civilized
people extend to the subjects of other nations residing among them. He
is indulged with many privileges of a high and uncommon nature--with
many exemptions from the operation of the laws of the country where he
resides, and among others, with a general exemption from the jurisdiction
of the judicial courts, both civil and criminal. This immunity is,
in respect to the criminal jurisdiction, without limitation; and an
Ambassador, though guilty of the most aggravated crimes of which the
heart of man can conceive or his hand commit, cannot be punished for
them by the tribunals of the Sovereign with whom he resides. Should he
conspire the destruction of the constitution or government of the State,
no jury of his peers can there convict him of treason. Should he point
the dagger of assassination to the heart of a citizen, he cannot be put
to plead for the crime of murder. In these respects he is considered as
the subject, not of the State to which he is sent, but of the State which
sent him, and the only punishment which can be inflicted on his crimes is
left to the justice of his master.
In a republican government, like that under which we have the happiness
to live, this exemption is not enjoyed by any individual of the nation
itself, however exalted in rank or station. It is our pride and glory,
that all are equal in the eyes of the law; that, however adorned with
dignity, or armed with power, no man owing allegiance to the majesty of
the nation can screen himself from the vindictive arm of her justice;
yet even the nations whose internal constitutions are founded upon this
virtuous and honorable principle of equal and universal rights, have,
like all the rest, submitted to this great and extraordinary exception.
In order to account for so singular a deviation from principles in every
other respect deemed of the highest moment and of the most universal
application, we must inquire into the reasons which have induced all
the nations of the civilized world to this broad departure from the
fundamental maxims of their government.
The most eminent writers on the laws of nations have at different times
assigned various reasons for this phenomenon in politics and morals. It
has sometimes been said to rest upon _fictions_ of law. The reasoning
has been thus: every Sovereign Prince is independent of all others, and
as such cannot, even when personally within the territories of another,
be amenable to his jurisdiction. An ambassador represents the person
of his master, and therefore must enjoy the same immunities. But this
reasoning cannot be satisfactory; for, in the first place, a foreign
Minister does not necessarily represent the person of his master--he
represents him only in his affairs; and besides representing him he
has a personal existence of his own, altogether distinct from his
representative character, and for which, on the principles of common
sense, he ought, like every other individual, to be responsible. At other
times, another fiction of law has been alleged, in this manner; the
foreign Minister is not the subject of the State to which he is sent, but
of his own Sovereign: he is therefore to be considered as still residing
within the territories of his master, and not in those of the Prince to
whom he is accredited. But this fiction, like the other, forgets the
personal existence of the Minister. It is dangerous, at all times, to
derive important practical consequences from fictions of law, in direct
opposition to the fact. If the principle of personal representation,
or that of _exterritoriality_ annexed to the character of a foreign
Minister be admitted at all, it can in sound argument apply only to his
official conduct--to his acts in the capacity of a Minister, and not to
his private and individual affairs. The Minister can represent the person
of the Prince, no otherwise than as any agent or factor represents the
person of his principal; and it would be an ill compliment to a Sovereign
Prince to consider him as personally represented by his Minister in
the commission of an atrocious crime. Another objection against this
wide-encroaching inference from the doctrine of personal representation,
is, that it is suitable only to Monarchies. The Minister of a King may
be feigned to represent in all respects the person of his master, but
what person can be represented by the Ambassador of a Republic? If I am
answered, the _moral person_ of the nation, then I reply, _that_ can be
represented by no individual, being itself a fiction in law, incapable
of committing any act, and having no corporeal existence susceptible of
representation. I have said thus much on this subject, because I have
heard in conversation these legal fictions alleged against the adoption
of the bill on your table, and because they may perhaps be urged against
it here.
But it is neither in the fiction of _exterritoriality_, nor in that of
personal representation, that we are to seek for the substantial reason
upon which the customary law of nations has founded the extraordinary
privileges of ambassadors; it is in the nature of their office, of their
duties, and of their situation.
By their office, they are intended to be the mediators of peace, of
commerce, and of friendship, between nations; by their duties they are
bound to maintain with firmness, though in the spirit of conciliation,
the rights, the honor, and the interests of their nation, even in the
midst of those who have opposing interests, who assert conflicting
rights, and who are guided by an equal and adverse sense of honor; by
their situation they would, without some extraordinary provision in their
favor, be at the mercy of the very Prince against whom they are thus to
maintain the rights, the honor, and the interest of their own. As the
ministers of peace and friendship, their functions are not only of the
highest and most beneficial utility, but of indispensable necessity to
all nations having any mutual intercourse with each other. They are the
only instruments by which the miseries of war can be averted when it
approaches, or terminated when it exists. It is by their agency that the
prejudices of contending nations are to be dissipated--that the violent
and destructive passions of nations are to be appeased--that men, as far
as their nature will admit, are to be converted from butchers of their
kind, into a band of friends and brothers. It is this consideration, sir,
which, by the common consent of mankind, has surrounded with sanctity the
official character of Ambassadors; it is this which has enlarged their
independency to such an immeasurable extent; it is this which has loosed
them from all the customary ties which bind together the social compact
of common rights and common obligations.
But immunities of a nature so extraordinary cannot, from the nature of
mankind, be frequently conferred, without becoming liable to frequent
abuse. Ambassadors are still beings subject to the passions, the vices,
and infirmities of man. However exempted from the danger of punishment,
they are not exempt from the commission of crimes. Besides their
participation in the imperfections of humanity, they have temptations
and opportunities peculiar to themselves, to transgressions of a very
dangerous description, and a very aggravated character. While the
functions of their office place in their hands the management of those
great controversies, upon which whole nations are wont to stake their
existence; while their situations afford them the means, and stimulate
them to the employment of the base but powerful weapons of faction, of
corruption, and of treachery, their very privileges and immunities concur
in assailing their integrity by the promise of security, even in case of
defeat--of impunity, even after detection.
The experience of all ages and of every nation has therefore pointed
to the necessity of erecting some barrier against the abuse of those
immunities and privileges, with which foreign Ministers have at all
times and every where been indulged. In some aggravated instances the
rulers of the State where the crime was committed have boldly broken down
the wall of privilege under which the guilty stranger would fain have
sheltered himself, and in defiance of the laws of nations have delivered
up the criminal to the tribunals of the country for trial, sentence, and
execution; at other times the popular indignation, by a process still
more irregular, has, without the forms of law, wreaked its vengeance upon
the perpetrators of those crimes, which otherwise must have remained
unwhipped of justice. Cases have sometimes occurred when the principles
of self-preservation and defence have justified the injured Government,
endangered in its vital parts, in arresting the person of such a Minister
during the crisis of danger, and confining him under guard until he could
with safety be removed. But the practice which the reason of the case
and the usage of nations has prescribed and recognized, is, (according
to the aggravation of the offence,) to order the criminal to depart
from the territories whose laws he has violated, or to send him home,
sometimes under custody, to his Sovereign; demanding of him that justice,
reparation, and punishment, which the nature of the case requires, and
which he alone is entitled to dispense. This power is admitted by the
concurrent testimony of all the writers on the laws of nations, and
has the sanction of practice equally universal. It results, indeed, as
a consequence absolutely necessary from the independence of foreign
Ministers on the judicial authority, and is perfectly reconcilable with
it. As respects the offended nation, it is a measure of self-defence,
justified by the acknowledged destitution of every other remedy. As
respects the offending Minister, it is the only means of remitting him
for trial and punishment to the tribunals whose jurisdiction he cannot
recuse; and as respects his Sovereign, it preserves inviolate his rights,
and at the same time manifests that confidence in his justice which
civilized nations living in amity are bound to place in each other.
On these principles, thus equitable and moderate in themselves, and thus
universally established, is founded every provision of the bill before
you, so far as it implicates the law of nations. I have been fully aware
that, although by the Constitution of the United States Congress are
authorized to define and punish offences against the law of nations, yet
this did not imply a power to innovate upon those laws. I could not be
ignorant that the Legislature of one individual in the great community of
nations has no right to prescribe rules of conduct which can be binding
upon all; and therefore, in the provisions of this bill, it was my
primary object not to deviate one step from the worn and beaten path--not
to vary one jot or one tittle from the prescriptions of immemorial usage
and unquestioned authority.
In consulting for this purpose the writers, characterized by one of
our own statesmen in a pamphlet recently laid on our tables, as “the
luminaries and oracles to whom the appeal is generally made by nations
who prefer an appeal to law rather than to power,” I found that they
distinguished the offences which may be committed by foreign Ministers
into two kinds--the one against the municipal laws of the country where
they reside, and the other against the Government or State to which they
are accredited; and that they recommended a correspondent modification
of the manner in which they are to be treated by the offended Sovereign.
The first section of the bill therefore directs the mode of treatment
towards foreign Ministers guilty of heinous offences against the
municipal laws; for, as to those minor transgressions which are usually
left unnoticed by other States, I have thought no provision necessary
for them. The section points out the mode by which the insulted State
or injured individual may apply to the Chief Magistrate of the Union for
redress, and by what process the President may obtain reparation from the
offender’s Sovereign, or, in case of refusal, dismiss the offender from
the territories of the United States.
The second section provides for the case of offences against the
Government of the nation. If the insult is direct upon the President
of the United States himself, it authorizes him at once to discard the
offender; if the injury be against the nation, by any conspiracy or other
act of hostility, it offers the means of removing at once so dangerous
a disturber of the public tranquillity. This also will be found exactly
conformable to the directions in _Vattel_.
The third section brings me to the consideration of the relation
which the bill bears to the Constitution of the United States. It
contains a regulation, the object of which is at once to prevent all
misunderstanding by the offending Minister’s Sovereign of the grounds
upon which he should be ordered to depart or sent home, and to mark by
a strong line of discrimination the cases when a foreign Minister is
dismissed for misconduct, from those when he is expelled on account of
national differences. In this latter case, by the general understanding
and usage of nations, an order to depart given to a foreign Minister is
equivalent to a declaration of war. In the European Governments, where
the power of declaring war and that of negotiating with foreign States
are committed to the same hands, this nice discrimination of the specific
reasons for which a Minister may be dismissed is far less important than
with us. The power of declaring war is with us exclusively vested in
Congress; and as the order to depart, when founded on national disputes,
amounts to such a declaration, it appears to me, by fair inference, that
for such cause the President of the United States cannot issue such an
order without the express request or concurrence of Congress to that
effect. It was from this view of the subject that, in the present bill,
the power vested in the President to send home a culpable Minister is
so precisely limited to the cases when the Minister shall have deserved
that treatment by his personal misconduct. This distinction between the
causes for which a foreign Minister may be sent home has been solemnly
recognized in a remarkable manner by this Government in the treaty with
Great Britain of the 19th November, 1794, in the twenty-sixth article.
Here, sir, the sending home a Minister for national causes is recognized
to be the very test of a rupture, and exactly tantamount to a declaration
of war. But the same act, done for the Minister’s personal misconduct,
is acknowledged to be a right of both parties, which they agree to
retain; and it is stipulated that it shall not in that case be deemed
equivalent to a rupture. The expressions used imply that the parties did
not consider themselves as introducing in this part of the article a new
law, but as explaining the old. It is merely declaratory, “for greater
certainty,” and the previous existence of the right is recognized by
the stipulation that both parties shall retain it. This is one of the
articles of the treaty which have expired; but as expressing the sense
both of our own nation and of Great Britain upon the subject to which it
relates, it is as effectual as it ever could be. Its provisions are still
binding upon both parties as part of the law of nations, though they have
ceased to be obligatory as positive stipulations.
It may now perhaps be expected, sir, that I should give some explanation
of the more immediate circumstances in which the bill originated. And
here I am sensible that I tread upon delicate ground. So highly honorable
and respectable is the office of a foreign Minister, that to treat him
with disrespect in common discourse, and still more in legislative
deliberation, would be without excuse, were his own conduct altogether
unexceptionable. Should the occasion ever happen that a foreign Minister
by his own violation of all the common decencies of social intercourse
towards the Government to which he was accredited, should forfeit every
right to personal respect or esteem, still I hope, sir, I should not
forget the consideration due to the credentials of his Sovereign; still
I should think myself bound to observe all that moderation of expression
which can be consistent with the sentiments of indignation involuntarily
excited in my breast by an insult upon the Government of my country.
Within a few days after the Message of the President at the commencement
of the present session of Congress was made public, the Spanish
Minister[30] addressed to the Secretary of State a letter couched
in terms which it cannot be necessary for me to particularize, and
containing, not only strictures of the most extraordinary nature upon
all the parts of that Message respecting Spain, but complaints no less
extraordinary at what it did not contain. Consider this procedure in
its real light, sir, and what is it? A foreign Minister takes to task
the President of the United States for the manner in which he has
executed one of the most important functions enjoined upon him by the
constitution. He not only charges him with misrepresentation in what he
did say, but he presumes to dictate to him what he should have said. I
forbear all comment upon this conduct as it relates to the present Chief
Magistrate. I ask you, sir, and I entreat every member of this Senate
to ask himself, What is its tendency as it relates to our country? The
Constitution of the United States makes it one of the President’s most
solemn duties to communicate to Congress correct information relating
to the state of our public affairs. In every possible case of disputes
and controversies of right between the United States and any foreign
nation, the Minister of that nation must have an interest--and the
strongest interest, to give a gloss and coloring to the objects in
litigation--opposite to the interest of our country. If, whenever the
President of the United States, upon the high and solemn responsibility
which weighs upon every act of his official duty, gives to Congress that
account of our foreign relations which is necessary to enable them to
adapt their measures to the circumstances for the general welfare of the
Union, a foreign Minister, under color of his official privileges, is
to contradict every part of his statements, to impeach the correctness
of his facts, and to chide him even for his omissions, to what an abyss
of abasement is the Chief Magistrate of this Union to be degraded! The
freedom which a Spanish Minister, unreproved, can take to-day, a French
Minister would claim as a right to-morrow, and a British Minister would
exercise without ceremony the next day. A diplomatic censorship would be
established over the Supreme Executive of this nation, and the President
would not dare to exhibit to Congress the statement of our national
concerns, without previously submitting his Message for approbation to
a Cabinet Counsel of foreign Ministers. Under the British Constitution,
the speeches of the Sovereign to his Parliament are all settled in his
Privy Council, and the Royal lips are understood to give utterance only
to the words of the Minister. The reason of this is, that by the forms of
their constitution the Sovereign himself is above all responsibility, and
the Minister is the person accountable to the nation for the substance
of the discourse delivered by his master. In their practice, therefore,
the speech is made by him on whom the responsibility rests. But if this
new assumption of the Spanish Minister is submitted to, our practice will
be an improvement on the British theory of a singular cast indeed; for,
while the responsibility will rest upon the President who delivers the
Message, its contents will be dictated by persons not only loosed from
all responsibility to our country, but bound in allegiance, in zeal, in
duty, to the very Princes with whom we have to contend. The same control
which by this measure is attempted to be usurped over the acts of the
President, will at the next step, and by an easy transition, be extended
to the Legislature; and, instead of parcelling out the Message among
several committees for their consideration, we shall have to appoint
committees upon every part of the Message relating to any foreign Power
to wait upon the Minister of that Power, and inquire what it is the
pleasure of his master that we should do.
That such is the inevitable tendency and the real intention of the
proceeding will appear, not only from a due consideration of the act
itself, but from a proper estimate of its avowed motive, and from the
subsequent conduct of the same Minister. He addressed this letter to the
Secretary of State, not for the purpose of asking any explanation--not
for the purpose of giving any satisfaction--not for any of the usual
and proper purposes of a diplomatic communication--but (as he himself
declares) for our Government to publish, with a view to counteract
the statements of the President’s Message. It was a challenge to the
President to enter the lists of a pamphleteering war against him, for
the instruction of the American people and the amusement of foreign
Courts; and having failed in this laudable project, he addresses, after
the expiration of forty days, a circular letter to the other foreign
Ministers residing in the United States, with copies of his letter to
the Secretary of State, as if these foreign Ministers were the regular
umpires between him and our Government. Not content however with this
appeal, he authorizes them to give copies of his letters to ensure that
publication with which our Government had not gratified him, and calls
at once upon the American people, and upon the European Courts, to
decide between the President and him. Here, too, sir, I beg gentlemen
to abstract the particular instance from the general principle of this
transaction. The same act which under one set of circumstances can only
excite contempt, under another becomes formidable in the extreme. Of the
newspaper appeal to the people I say nothing. The people of this country
are not so dull of understanding or so depraved in vice as to credit the
assertions of a foreigner, bound by no tie of duty to them--the creature
and agent of their adversary--in contradiction to those of their own
officer, answerable to them for his every word, and stationed at the
post of their highest confidence. But the circular to the other foreign
Ministers is a species of appeal hitherto unprecedented in the United
States. And what is its object? The information of their Courts; that the
Governments of France and Great Britain may learn from him the justice
and generosity of his master.
It is probable that both those nations--the ally and the enemy of
Spain--have much better materials for estimating the justice and
generosity of His Catholic Majesty; but what have they to do in the case?
By an anonymous newspaper publication, the idiom of which discovers its
origin, a precedent is alleged in justification of this extraordinary
step, and the reciprocal communication of diplomatic memorials concerning
the affair of Holland in the years 1786 and 1787, between the Ministers
of Great Britain, France, and Prussia, at the Hague, is gravely adduced
as warranting this innovation of the Spanish Minister here. The very
reference to that time, place, and occasion, would of itself be a
sufficient indication of the intent at this time. In the years 1786 and
1787, the three Powers I have just mentioned undertook, between them, not
only to interfere in the internal government of Holland, but to regulate
and control it according to a plan upon which they were endeavoring to
agree. Their Ministers, therefore, very naturally communicated to each
other the memorials which they presented to the Dutch Government. And
what was the result? Two of those three Powers fixed between themselves
the doom of Holland--raised a tyrannical faction upon the ruins of that
country’s freedom, and marched the Duke of Brunswick, at the head of
thirty thousand men, into Amsterdam, to convince the Hollanders of the
King of Prussia’s _justice_ and _generosity_.
This, sir, is the precedent called to our recollection for the purpose
of reconciling us to the humiliation of our condition. We are patiently
to behold a Spanish Minister insulting the President of the United
States--dictating to him _his_ construction of our constitution--calling
upon other foreign Ministers to countenance his presumption--and
intrenching himself behind the example of another nation, once made the
victim of a like usurpation! The resemblance is but too strong, and
will, I hope, not be forgotten by us. If the constitutional powers of a
Dutch Stadtholder were prescribed and moulded according to the pleasure
and by the interference of foreign Powers, (as undoubtedly they were,)
let us remember the fact with a determination never to be so controlled
ourselves. It is held up to us as an example: let us take it as warning.
The subsequent proceedings of the Spanish Minister have been all in
the same spirit with that under which he presumed to call upon the
President to enter the lists of altercation with him before the people
of this country. They manifest pretensions to which we ought not to
submit--which we ought vigorously to resist. In his last letter to the
Secretary of State, he tells him that he will receive no orders but
from his own master. Now, if this has any meaning, it must be to deny
the United States the right of ordering him away: that is one of the
most indisputable rights of every Sovereign Power. When pretensions so
destitute of all foundation are advanced, it becomes us immediately
to show our sense of them: not to resist them might be construed into
acquiescence. It is a virtual dereliction of our rights not to defend
them when they are assailed.
I am indeed fully sensible that the operation of the bill I have
proposed, should it meet the sanction of Congress, will not be
retrospective--that to what has passed no remedy which can now be
provided will apply--but we may prevent in future occurrences of a like
character, and much more dangerous consequence. We may prevent the
spreading of an evil which threatens the dearest interests of the nation;
we may prevent even the repetition of insults and injuries, which, but
for the want of the regulations now proposed, in all probability never
would have been offered. In my own opinion, the necessity for some
legislative provision upon this subject will force itself upon this
Government with additional pressure, from year to year, until it can no
longer be resisted. If foreign Ministers are to possess in the United
States an unbounded independence of all the tribunals of justice, while
the United States on their part are to be deprived of the ordinary means
of self-defence, enjoyed and exercised by all other Sovereigns, to check
the abuse of those formidable privileges, the course of events will, in
my belief, at no very distant day, bring us into that unhappy dilemma
which will leave no other alternative than to infringe the laws of
nations or to sacrifice our constitution--to commit violent outrage upon
the rights of others, or to make a dastardly surrender of our own.
The amendment was adopted, and the bill ordered to a third reading.
FRIDAY, March 7.
_Privileges of Foreign Ministers._
The Senate resumed the third reading of the bill to prevent the abuse of
the privileges and immunities enjoyed by foreign Ministers within the
United States.
A motion was made to strike out the first, second, and third sections of
the bill. Whereupon, a division of the question was called for; and on
the question to strike out the first section, it was determined in the
affirmative--yeas 23, nays 7, as follows:
YEAS.--Messrs. Adair, Anderson, Baldwin, Bayard, Bradley,
Condit, Gaillard, Gilman, Hillhouse, Howland, Kitchel, Logan,
Maclay, Moore, Pickering, Smith of Maryland, Smith of Ohio,
Smith of Tennessee, Smith of Vermont, Stone, Sumter, Thruston,
and White.
NAYS.--Messrs. Adams, Mitchill, Plumer, Smith of New York,
Tracy, Turner, and Worthington.
And on the question to strike out the second section of the bill, it was
determined in the affirmative--yeas 21, nays 9, as follows:
YEAS.--Messrs. Anderson, Baldwin, Bayard, Bradley, Condit,
Gaillard, Gilman, Hillhouse, Howland, Kitchel, Logan, Maclay,
Moore, Pickering, Smith of Maryland, Smith of Ohio, Smith of
Tennessee, Smith of Vermont, Stone, Sumter, and Thruston.
NAYS.--Messrs. Adair, Adams, Mitchill, Plumer, Smith of New
York, Tracy, Turner, White, and Worthington.
And on the question to strike out the third section of the bill, it was
determined in the affirmative--yeas 27, nays 3, as follows:
YEAS.--Messrs. Adair, Adams, Anderson, Baldwin, Bayard,
Bradley, Condit, Gaillard, Gilman, Hillhouse, Howland, Kitchel,
Logan, Maclay, Moore, Pickering, Plumer, Smith of Maryland,
Smith of New York, Smith of Ohio, Smith of Tennessee, Smith of
Vermont, Stone, Sumter, Thruston, Turner, and White.
NAYS.--Messrs. Mitchill, Tracy, and Worthington.
And the bill having been further amended, on the question, Shall this
bill pass? it was determined in the negative--yeas 4, nays 24, as follows:
YEAS.--Messrs. Adams, Plumer, Smith of Ohio, and Thruston.
NAYS.--Messrs. Adair, Anderson, Baldwin, Bayard, Bradley,
Condit, Gaillard, Gilman, Hillhouse, Howland, Kitchel,
Logan, Maclay, Moore, Pickering, Smith of New York, Smith of
Tennessee, Smith of Vermont, Stone, Sumter, Tracy, Turner,
White, and Worthington.
So the bill was lost.
MONDAY, March 10.
_British Aggressions._
The Senate resumed the consideration of the third resolution reported by
the committee, on the 5th of February last, to whom was referred that
part of the Message of the President of the United States, at the opening
of the session, which relates to the spoliations of our commerce.
Mr. S. SMITH.--Mr. President: The subject now before the Senate is,
the third resolution reported by your committee on that part of the
Message which relates to British spoliations. The first resolution is a
declaration of our neutral rights, and has passed the Senate unanimously.
The second requests the President to send a special mission to Great
Britain to demand restoration of property unlawfully taken from our
merchants, and, by a peaceful arrangement, to adjust all differences
subsisting between that nation and the United States. The third is now
before us. I will take leave to read it.
3. _Resolved_, That it is expedient to prohibit, by law, the
importation into the United States of any of the following
goods, wares, or merchandise, being the growth, produce,
or manufactures of the United Kingdoms of Great Britain
and Ireland, or the dependencies thereof, that is to say:
woollens, linens, hats, nails, looking-glasses, rum, hardwares,
slate, salt, coal, boots, shoes, ribbons, silks, and plated
and glass wares. The said prohibition to commence from the
---- day of ----, unless, previously thereto, equitable
arrangements shall be made between the two Governments, on the
differences subsisting between them; and to continue until such
arrangements shall be agreed upon and settled.
This resolution is intended, Mr. President, to afford aid to the
negotiation recommended in the second. Without this aid, or something
similar, I doubt whether Great Britain would not calculate, as
heretofore, on an indecisive character in our Government--on its
indisposition to lend any aid or protection to commerce; and reasoning
thus, whether her Minister might not be induced to believe that he could
proceed in safety to the destruction of every part of our commerce
with her enemies and their dependencies. This measure, Mr. President,
is called a war measure. Is it so? If it is, then does Great Britain
maintain a constant war measure against the United States, for she, at
all times, prohibits the importation, into her ports, of every article
manufactured within our country. She even prohibits our provisions from
being consumed in her kingdoms, except when her wants compel her to
admit them. If, then, she has set us the example, and has, by her laws,
prohibited every article of our manufacture from being admitted into
her kingdoms, how can our prohibiting a part of her manufactures from
being imported into the United States, be considered as a war measure?
This measure is not intended to take effect immediately. The first of
November next is contemplated; which will give full time for negotiation,
and for Great Britain to reflect on her cruel and unprovoked conduct
towards us--a conduct that has been highly reprobated in England--a
conduct that, when examined, has but too much the appearance of a
determination to benefit by the plunder of our property, without the
authority of law, and directly contrary to the public sanction given to
our neutral trade in a correspondence held between Lord Hawkesbury and
Mr. King, in 1801.
FRIDAY, March 14.
_Captain Peter Landais._
The bill, entitled “An act for the relief of Peter Landais,” was read
the third time; and, on motion to strike out the word “six,” and in lieu
thereof to insert the word “three,” thereby to reduce the sum proposed
for his relief to three thousand dollars, it passed in the negative.
On motion, by one of the majority, it was agreed to reconsider the last
vote, and to strike out the word “six.”
On motion, to fill the blank with the word “five,” it passed in the
negative; and, on motion, it was agreed to fill the blank with the word
“four.”
On the question, shall the bill pass as amended? it was determined in the
affirmative--yeas 19, nays 10, as follows:
YEAS.--Messrs. Adair, Adams, Anderson, Bayard, Condit, Gilman,
Howland, Kitchel, Maclay, Mitchill, Smith of Maryland, Smith of
Ohio, Smith of Tennessee, Smith of Vermont, Thruston, Turner,
White, Worthington, and Wright.
NAYS.--Messrs. Baldwin, Bradley, Gaillard, Hillhouse, Moore,
Pickering, Plumer, Smith of New York, Sumter, and Tracy.
So it was _Resolved_, That this bill pass as amended.
MONDAY, March 17.
_Ex-Bashaw of Tripoli._
Mr. BRADLEY, from the committee appointed on the 16th of January last,
to consider the Message of the President of the United States of the
13th of January, respecting the application of Hamet Caramalli, made the
following report:
The ex-Bashaw founds his claim on the justice of the United
States, from his services and suffering in their cause, and
from his having been deceived and amused with the prospect of
being placed on his throne, as legitimate Sovereign of Tripoli,
and frequently drawn from eligible situations for the purpose
of being made the dupe and instrument of policy, and finally
sacrificed to misfortune and wretchedness. The committee, from
a full investigation of the documents which have been laid
before Congress, with other evidence that has come within
their knowledge, are enabled to lay before the Senate a brief
statement of facts in relation to the ex-Bashaw, and the result
of their deliberations thereon.
This unfortunate prince, by the treason and perfidy of his
brother, the reigning Bashaw, was driven from his throne,
an exile, to the Regency of Tunis, where the agency of the
United States, in the Mediterranean, found him; and as early
as August, eighteen hundred and one, entered into a convention
to co-operate with him, the object of which was to obtain
a permanent peace with Tripoli, to place the ex-Bashaw on
his throne, and procure indemnification for all expense in
accomplishing the same. This agreement was renewed in November
following, with encouragement that the United States would
persevere, until they had effected the object; and in eighteen
hundred and two, when the reigning Bashaw had made overtures
to the ex-Bashaw to settle on him the two provinces of Derne
and Bengazi, and when the ex-Bashaw was on the point of leaving
Tunis, under an escort furnished him by the reigning Bashaw,
the agents of the United States prevailed on him to abandon the
offer, with assurance that the United States would effectually
co-operate, and place him on the throne of Tripoli.
The same engagements were renewed in eighteen hundred and
three, and the plan of co-operation so arranged, that the
ex-Bashaw, by his own exertions and force, took possession of
the province of Derne; but the American squadron, at that time
under the command of Commodore Morris, instead of improving
that favorable moment to co-operate with the ex-Bashaw, and
to put an end to the war, unfortunately abandoned the Barbary
coast, and left the ex-Bashaw to contend solely with all the
force of the reigning Bashaw, and who in consequence was
obliged, in the fore part of the year eighteen hundred and
four, to give up his conquest of Derne, and fly from the fury
of the usurper into Egypt. These transactions were, from time
to time, not only communicated by our agents to Government, but
were laid before Congress in February, eighteen hundred and
four, in the documents accompanying the report of the Committee
of Claims on the petition of Mr. Eaton, late Consul at Tunis,
which committee expressed their decided approbation of his
official conduct, and to which report the committee beg leave
to refer.
In the full possession of the knowledge of these facts, the
Government of the United States, in June, eighteen hundred and
four, despatched Commodore Barron, with a squadron, into the
Mediterranean, and in his instructions submitted to his entire
discretion the subject of availing himself of the co-operation
of the ex-Bashaw, and referring him to Mr. Eaton as an agent
sent out by Government for that purpose.
After Commodore Barron had arrived on the station, in
September, eighteen hundred and four, he despatched Mr. Eaton
and Captain Hull into Egypt, to find the ex-Bashaw, with
instructions to assure him that the Commodore would take the
most effectual measures with the forces under his command, to
co-operate with him against the usurper, his brother, and to
establish him in the Regency of Tripoli. After encountering
many difficulties and dangers, the ex-Bashaw was found in
Upper Egypt with the Mamelukes, and commanding the Arabs;
the same assurances were again made to him, and a convention
was reduced to writing, the stipulations of which had the
same objects in view; the United States to obtain a permanent
peace and their prisoners, the ex-Bashaw to obtain his throne.
Under these impressions, and with the fullest confidence in
the assurances he had received from the agents of the United
States, and even from Commodore Barron himself, by one of his
(the Bashaw’s) secretaries, whom he had sent to wait on the
Commodore for that purpose, he gave up his prospects in Egypt,
abandoned his property in that country, constituted Mr. Eaton
general and commander-in-chief of his forces, and with such
an army as he was able to raise and support, marched through
the Libyan desert, suffering every hardship incident to such a
perilous undertaking; and with his army, commanded by General
Eaton, aided by O’Bannon and Mann, three American officers,
who shared with him the dangers and hardships of the campaign,
and whose names their country will for ever record with honor,
attacked the city of Derne in the Regency of Tripoli, on the
twenty-seventh day of April, one thousand eight hundred and
five, and, after a well-fought battle, took the same; and for
the first time planted the American colors on the ramparts of
a Tripolitan fort. And in several battles afterwards, one of
which he fought without the aid of the Americans, (they having
been restrained by orders, not warranted by any policy, issued
as appears by Mr. Lear, the American Consul,) defeated the army
of the usurper with great slaughter, maintained his conquest,
and, without the hazard of a repulse, would have marched to the
throne of Tripoli, had he been supported by the co-operation
of the American squadron, which in honor and good faith he
had a right to expect. The committee would here explicitly
declare, that, in their opinion, no blame ought to attach to
Commodore Barron. A wasting sickness, and a consequent mental
as well as bodily debility, had rendered him totally unable to
exercise the duties of commanding the squadron, previously to
this momentous crisis, and from which he has never recovered;
and to this cause alone may be attributed the final failure
of the plan of co-operation which appears to have been wisely
concerted by the Government, and hitherto bravely executed by
its officers.
But, however unpleasant the task, the committee are compelled,
by the obligations of truth and duty, to state further that
Mr. Lear, to whom was intrusted the power of negotiating the
peace, appears to have gained a complete ascendency over the
Commodore, thus debilitated by sickness; or rather, having
assumed the command in the name of the Commodore, to have
dictated every measure; to have paralyzed every military
operation by sea and land; and finally, without displaying
the fleet or squadron before Tripoli, without consulting even
the safety of the ex-Bashaw or his army, against the opinion
of all the officers of the fleet, so far as the committee
have been able to obtain the same, and of Commodore Rodgers,
(as appears from Mr. Lear’s letter to the Secretary of State,
dated Syracuse harbor, July 5th, 1805,) to have entered into
a convention with the reigning Bashaw, by which, contrary to
his instructions, he stipulated to pay him sixty thousand
dollars, to abandon the ex-Bashaw, and to withdraw all aid and
assistance from his army. And although a stipulation was made
that the wife and children of the ex-Bashaw should be delivered
to him on his withdrawing from the territories of Tripoli,
yet that stipulation has not been carried into execution, and
it is highly probable was never intended to be. The committee
forbear to make any comment on the impropriety of the orders
issued to General Eaton to evacuate Derne, five days previous
to Mr. Lear’s sailing from Malta for Tripoli, to enter on his
negotiation; and the honor of the nation forbids any remarks on
the unworthy attempt to compel the ex-Bashaw and General Eaton
to give up and abandon their conquest, by withholding supplies
from the army at Derne, eight days previous to the commencement
of the negotiation; nor will the committee condescend to enter
into a consideration of pretended reasons, assigned by Mr. Lear
to palliate his management of the affairs of the negotiation;
such as, the danger of the American prisoners in Tripoli, the
unfitness of the ships for service, and the want of means to
prosecute the war; they appear to the committee to have no
foundation in fact, and are used rather as a veil to cover an
inglorious deed, than solid reasons to justify the negotiator’s
conduct. The committee are free to say, that, in their opinion,
it was in the power of the United States, with the force then
employed, and a small portion of the sixty thousand dollars,
thus improperly expended, to have placed Hamet Caramalli, the
rightful sovereign of Tripoli, on his throne; to have obtained
their prisoners in perfect safety, without the payment of a
cent, with assurance, and probable certainty, of eventual
remuneration for all expenses; and to have established a
peace with the Barbary Powers, that would have been secure
and permanent, and which would have dignified the name and
character of the American people.
Whatever Hamet, the ex-Bashaw, may have said, in his letter of
June 29th, 1805, to palliate the conduct which first abandoned
and then ruined him, the Senate cannot fail to discern that
he was then at Syracuse, in a country of strangers to his
merits, and hostile to his nation and religion, and where every
circumstance conspired to depress him, which, together with the
fear of starving, left him scarcely a moral agent.
Upon these facts, and to carry into effect the principle of
duty arising out of them, the only remuneration now left
in the power of the United States to make, the committee
herewith present a bill for the consideration of the Senate.
The committee are confident that the legislature of a free
and Christian country can never leave it in the power of a
Mahometan to say that they violate their faith, or withhold the
operations of justice from one who has fallen a victim to his
unbounded confidence in their integrity and honor.
The report was ordered to lie for consideration.
Mr. BRADLEY, from the same committee, also reported a bill “for the
relief of Hamet Caramalli, ex-Bashaw of Tripoli;” and the bill was read,
and ordered to the second reading.
TUESDAY, March 18.
_Thanks to General Eaton, and his Companions._
Mr. Bradley submitted the following resolutions for consideration, which
were read:
“_Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled_, That Congress
entertain a high sense of the patriotism, intrepidity, and
valor, of William Eaton, late General-in-chief of the army
of the ex-Bashaw of Tripoli, and of Priestly N. O’Bannon,
and George Washington Mann, three American officers, who,
with a small number of American marines and the forces of the
ex-Bashaw, composed of Greeks and Arabs, courageously marched
through the Libyan desert, defeated the Tripolitan army near
Derne, and took that city on the twenty-seventh day of April,
eighteen hundred and five, and for the first time spread the
American eagle in Africa, on the ramparts of a Tripolitan fort,
and thereby contributed to release three hundred American
prisoners from bondage in Tripoli.
“_Resolved_, As a further testimony of the gratitude of their
country, that the President of the United States be requested
to cause to be surveyed, within the limits of the public lands
of the United States now open for sale, as the said William
Eaton shall elect, a township of six miles square, to be
called Derne, as a memorial of the conquest of that city, for
ever; and to cause to be laid out, surveyed, and granted, to
the said William Eaton, in one entire tract, within the said
township, ---- thousand acres; and to Priestly N. O’Bannon
and George Washington Mann, each ---- thousand acres; and to
Arthur Campbell, Bernard O’Brian, David Thomas, and James Owen,
the only surviving marines who served as volunteers in that
expedition, three hundred and twenty acres each; to be granted
to them, respectively, their heirs, and assigns, for ever.”
WEDNESDAY, March 19.
_Death of Senator Jackson._
The Senate were informed that JAMES JACKSON, one of their members, from
the State of Georgia, had deceased the last night, whereupon,
_Resolved_, That a committee be appointed to take order for
superintending the funeral of JAMES JACKSON, and that the Senate will
attend the same; and that notice of the event be given to the House of
Representatives; and,
_Ordered_, That this committee consist of Messrs. ANDERSON, SUMTER, and
WRIGHT.
_Resolved, unanimously_, That the members of the Senate, from a sincere
desire of showing every mark of respect due to the memory of JAMES
JACKSON, deceased, late a member thereof, will go into mourning for him
one month, by the usual mode of wearing a crape round the left arm.
The Senate adjourned.
THURSDAY, March 20.
A message from the House of Representatives informed the Senate that the
House will attend the funeral of JAMES JACKSON, Esquire, late a Senator
of the United States. They have also determined to wear mourning on the
left arm, for the space of one month, in testimony of their respect for
the memory of that distinguished Revolutionary patriot.
TUESDAY, April 1.
_Ex-Bashaw of Tripoli._
The bill for the relief of Hamet Caramalli, ex-Bashaw of Tripoli, being
under consideration, on the question, Shall this bill pass? Mr. BRADLEY
having finished his remarks in support of the bill--
Mr. ADAMS said: Mr. President, when the question was yesterday stated
from the Chair, on the final passage of this bill, and I found myself
called on to record my assent to or dissent from it, I felt myself
bound in duty to call upon the committee by whom it was reported, for
the evidence upon which they had rested the claim of Hamet Bashaw to
the grant of money which is proposed by the bill to be made to him.
Together with the bill the committee had reported what they term “a
brief statement of facts;” upon which they declare the bill itself to
be founded, and wherein they consider his claim, not on the generosity,
but on the justice of the United States, from his service and sufferings
in their cause, and from his having been deceived and amused with the
prospect of being placed on his throne, as legitimate sovereign of
Tripoli, and frequently drawn from eligible situations for the purpose
of being made the dupe or instrument of policy, and finally sacrificed
to misfortune and wretchedness. The bill accordingly makes the grant,
expressly in consideration of his services and sufferings in our cause;
and, in voting for the bill as it now stands, I should consider myself
as sanctioning, as far as my vote would go, the report of the committee,
upon which the bill is founded. This I could not do without further
information. I thought, sir, and have thought, from the moment when I
first saw the report, that the statement it contained, far from being
supported by the voluminous documents which have been, in the course of
the session, communicated to the Senate, respecting all our transactions
with Tripoli, was in many respects contradictory to the whole tenor of
those documents; my recollection of the documents was, indeed, only
of their general tenor; for, amidst the pressure of the various other
important business which we have had before us, I had not found time
for a reperusal of them since I had heard them read at your table. But,
of their general complexion, my mind had received a clear and very
decided impression, with which I found it impossible to reconcile any
part of the committee’s report. I presumed, however, that the committee
were possessed of evidence, not yet communicated to the Senate, which
warranted them in those assertions, which all the papers with which I
had been made acquainted tended rather to disprove than to confirm.
The chairman of the committee has this day informed the Senate of the
grounds upon which the report was drawn up, and has communicated what he
considers as the additional evidence in its support. He has also favored
us with the arguments upon which he thinks the views of the subject,
taken in the report, are fully substantiated. I regret, sir, that neither
his arguments nor his evidence have been satisfactory to my mind; but
that, after giving them what I deem their full share of weight, I still
remain convinced that the report is founded upon a supposed state of
facts altogether erroneous, and a view of the whole subject altogether
incorrect.
The merits of Hamet Bashaw’s claim upon the United States must depend
upon the nature of the engagements contracted between the United States
and him, and upon the transactions under those engagements. With respect
to the nature of the engagements, there is a very striking difference
between the statement of the committee and the statement of the President
of the United States in his Message of the 13th of January last. The
statement of the committee is as much at variance with the ideas of Hamet
Bashaw himself as with those of the President, and equally in opposition
to those of Commodore Barron and Mr. Lear, as they appear in the printed
papers.
With regard to the facts material to constitute the peculiar character of
the ex-Bashaw’s claim, the statement of the committee is no less in flat
contradiction to the statements of the President, to the acknowledgments
of Hamet Bashaw, and to the tenor of the most substantial documents.
As to the nature of the engagements, the committee represent Hamet
Bashaw as having been inveigled, deceived, amused with promises to place
him on his throne, and finally betrayed and sacrificed. They appear
to think the United States were bound, at all events, and, by their
exclusive exertions, to restore him to his dignity, and that the mere
act of withdrawing their aid, without accomplishing that object, was a
treacherous violation of their faith plighted to him.
Let us now see what was the real nature of those magnificent offers
of the reigning Bashaw to his brother--the armed escort, and the two
provinces--upon the abandonment of which, under the influence of our
agents, the report raises such a fund of merit and sacrifice on the part
of Hamet. The committee take this circumstance from a statement made by
Mr. Eaton to the Committee of Claims, in February 7, 1804, printed among
the documents of that season. Largely as the chairman of the committee
has drawn from that statement in making his report, it is singular that
the following passage in it, page 16, has escaped his attention:
“Meantime, I had wrought upon the Bey’s Minister to countenance
and aid my project, in consideration of my promise to give
him $10,000, on condition of his fidelity, and in case of its
success. I thought it good policy to secure the Minister;
not so much for the service he would render, as to check the
mischief which seemed impending. He confessed it was the
intention of the enemy Bashaw, by this illusive overture, to
get possession of the rival brother in order to destroy him;
and he permitted my dragoman, under an injunction of secrecy,
to communicate the design to Hamet Bashaw. This determined him
to go to Malta, under a pretext to his people of evading the
Swedish and American cruisers.”
And are these the overtures? Is this the eligible situation, of such
precious value to the ex-Bashaw, that this nation, or its Government, is
to be charged with perfidy and treachery because our agents prevailed
upon him to abandon them? Even so! The reigning Bashaw sends an escort
of forty men, with offers of two provinces, to his exiled brother, for
the sole purpose of getting him into his possession to destroy him. Our
agents discover the project; apprise the destined victim of his intended
fate; rescue him from inevitable destruction--and now, we are to be told,
that by this act, we were not conferring, but receiving an obligation,
which bound us in honor and duty to restore him to his throne.
Thus much, sir, for the nature of the transactions between the agents
of the United States and the ex-Bashaw, prior to the year 1804, when
Commodore Barron with his squadron were sent into the Mediterranean,
and when he was vested with discretionary powers to avail himself of
Hamet’s co-operation, and referred to Mr. Eaton as an agent sent out by
Government for that purpose.
This discretionary power of Commodore Barron, the chairman of the
committee has this day strongly contended was altogether unlimited, and
such is the idea given of it in the report; but this I apprehend to be a
mistake of the utmost importance. It is in direct contradiction to the
statement of the President’s Message, and to the testimony of Commodore
Barron himself. The President’s Message says:
“We authorized Commodore Barron, then proceeding with his
squadron, to enter into an understanding with Hamet, if he
should deem it useful; and as it was represented that he would
need some aid of arms and ammunition, and even of money, he
was authorized to furnish them to a moderate extent, according
to the prospect of utility to be expected from it. The
instructions of June 6th, to Commodore Barron, show that a
co-operation only was intended, and by no means a union of our
object with the fortunes of the ex-Bashaw; and the Commodore’s
letters of March 22, and May 19, prove that he had the most
correct idea of our intentions.”
Thus, sir, the discretionary power of Commodore Barron, to avail himself
of Hamet’s co-operation, was not unlimited--neither by the intention
of the Executive, nor in his own understanding. It was limited both
as to the nature of the engagement he was to contract, and as to the
sum appropriated for the purpose; co-operation is a term of reciprocal
import--it certainly means that there should be some operation on
both sides. The operation in this case by sea, was to be conducted
entirely and exclusively by the squadron of the United States. Hamet
Bashaw could contribute, and was expected to contribute, nothing to
that. His operation was to be by land; and, upon principles of ordinary
reciprocity, it might have been required that this also should be
exclusively at his expense. The Government, however, were willing to
furnish him some aid even there. And the sum of twenty thousand dollars
had been appropriated for that purpose. This was going as far as prudence
would warrant, or as good faith could require. Hamet himself could have
entertained no other expectation, since, in his letter to Mr. Eaton, of
3d January, he says: “Your operations should be carried on by sea; mine
by land.” And even after the peace was made, in his letter to Mr. Eaton,
of 20th June, he acknowledges, as clearly as language can express it,
that the failure of co-operation was not on our part, but his own; that
his means had not been found to answer our reasonable expectations; and
that he was “satisfied with all our nation has done concerning him.”
If Hamet, after the capture of Derne, was totally unable to command
any resources, or bear any part in co-operation with us, how can it
be said that he would, without the hazard of a repulse, have marched
to the throne of Tripoli, had he been supported by the co-operation
of our squadron? But, further, I ask what were the means, what were
the resources, of this sovereign prince, from the hour when Mr. Eaton
received his orders to withdraw from him? The event, sir, is worth a
thousand arguments. He could not support himself a day. He was compelled
to take instantaneous refuge on board our vessels, and was saved from
destruction only by being brought away. Does this look like marching to
the throne of Tripoli?
I am aware, sir, that the report has very explicitly declared that no
blame ought to attach to Commodore Barron; but it has also declared that
a wasting sickness, and consequent mental as well as bodily debility, had
rendered him totally unable to command the squadron; that to this cause
alone may be attributed the final failure of the plan of co-operation;
that Mr. Lear appears to have gained a complete ascendency over him, thus
debilitated by sickness; or rather that Lear, having assumed the command,
in the name of the Commodore, paralyzed every military operation by sea
and land; and they go so far as to impute to Mr. Lear all the letters
of Commodore Barron, subsequent to that of 21st of March, 1805. If the
gentleman from Maryland considers all this, sir, as perfectly respectful
to the Commodore, I can only say that it appears in a different light
to me, nor do I imagine it will bear that complexion to the person
immediately interested in it. But the chairman of the committee has gone
yet further. He has told you, in so many words, that the Commodore was
reduced to a state of perfect childhood; has represented him as equally
incapable of thought and of action; in a mere state of dotage. And all
this upon what evidence? Why, because, in one of his letters, Commodore
Barron says he is unable to write with his own hand; and because, from
the 19th to the 22d of May, there appear among the documents, five
letters, long letters, says the gentleman, and yet the Commodore’s
secretary had an inflammation in his eyes.
MONDAY, April 7.
The bill, entitled “An act further to alter and establish certain post
roads, and for other purposes,” was read the second time, and referred to
Messrs. ANDERSON, WHITE, and STONE, to consider and report thereon.
_Importation of Slaves._
Mr. WRIGHT communicated a resolution of the Legislature of the State of
Maryland instructing their Senators and Representatives in Congress to
use their utmost exertions to obtain an amendment to the Constitution
of the United States to prevent the further importation of slaves;
whereupon, Mr. WRIGHT submitted the following resolutions for the
consideration of the Senate:
_Resolved, &c._ That the following article be proposed to the
Legislatures of the several States, as an amendment to the
Constitution of the United States, which, when ratified by
three-fourths of the said Legislatures, shall be valid as a
part of the said constitution, to wit:
_Resolved_, That the migration or importation of slaves into
the United States, or any territory thereof, be prohibited
after the first day of January 1808.
THURSDAY, April 10.
_Non-Importation Act._
The Senate took into consideration, in Committee of the Whole, (Mr.
ANDERSON having been requested by the PRESIDENT to take the Chair,) the
amendments reported by the select committee to the bill, entitled “An act
to prohibit the importation of certain goods, wares, and merchandise.”
And, after debate, the PRESIDENT resumed the Chair, and Mr. ANDERSON,
from the Committee of the Whole, reported that they had disagreed to the
amendments of the select committee, but had agreed to an amendment to the
bill; which was read, and the bill was amended accordingly; and, on the
question, Shall the bill pass to the third reading, as amended? it passed
in the affirmative--yeas 19, nays 9, as follows:
YEAS.--Messrs. Adams, Anderson, Baldwin, Condit, Gaillard,
Gilman, Howland, Kitchel, Maclay, Mitchill, Moore, Smith of
Maryland, Smith of New York, Smith of Ohio, Smith of Tennessee,
Smith of Vermont, Thruston, Turner, and Wright.
NAYS.--Messrs. Adair, Bradley, Hillhouse, Pickering, Plumer,
Stone, Sumter, Tracy, and White.
FRIDAY, April 11.
_Potomac Bridge._
The bill, entitled “An act authorizing the erection of a bridge over the
river Potomac, within the District of Columbia,” was read the third time;
and, on motion to postpone the further consideration thereof until the
first Monday in December next, it passed in the affirmative--yeas 19,
nays 10, as follows:
YEAS.--Messrs. Adair, Adams, Anderson, Baldwin, Gilman,
Hillhouse, Howland, Kitchel, Maclay, Mitchill, Pickering, Smith
of Maryland, Smith of New York, Stone, Sumter, Thruston, Tracy,
Worthington, and Wright.
NAYS.--Messrs. Bradley, Condit, Gaillard, Moore, Plumer, Smith
of Ohio, Smith of Tennessee, Smith of Vermont, Turner, and
White.
So the bill was postponed.
SATURDAY, April 12.
_Exclusion of Army and Naval officers from civil appointments._
The bill, entitled “An act to prohibit the officers of the Army and Navy
from holding or exercising any civil office,” was read the second time;
and on motion to postpone this bill to the first Monday in December next,
it passed in the affirmative--yeas 17, nays 10, as follows:
YEAS.--Messrs. Adair, Adams, Baldwin, Condit, Gilman, Howland,
Kitchel, Logan, Mitchill, Plumer, Smith of Maryland, Smith of
New York, Smith of Tennessee, Smith of Vermont, Tracy, White,
and Wright.
NAYS.--Messrs. Anderson, Gaillard, Hillhouse, Maclay, Moore,
Pickering, Stone, Sumter, Turner, and Worthington.
So the bill was postponed.
MONDAY, April 14.
_Tunisian Demand and Threat._
The following Message was received from the PRESIDENT OF THE UNITED
STATES, which was read, and ordered to lie for consideration:
_To the Senate and House of Representatives of the United
States_:
During the blockade of Tripoli by the squadron of the United
States, a small cruiser, under the flag of Tunis, with two
prizes (all of trifling value) attempted to enter Tripoli,
was turned back, warned, and attempting again to enter, was
taken and detained as prize by the squadron. Her restitution
was claimed by the Bey of Tunis, with a threat of war, in
terms so serious that, on withdrawing from the blockade of
Tripoli, the commanding officer of the squadron thought it his
duty to repair to Tunis with his squadron, and to require a
categorical declaration, whether peace or war was intended. The
Bey preferred explaining himself by an Ambassador to the United
States, who, on his arrival, renewed the request that the
vessel and her prizes should be restored. It was deemed proper
to give this proof of friendship to the Bey, and the Ambassador
was informed the vessels would be restored. Afterwards he made
a requisition of naval stores to be sent to the Bey, in order
to secure a peace for the term of three years, with a threat
of war, if refused. It has been refused, and the Ambassador is
about to depart without receding from his threat or demand.
Under these circumstances, and considering that the several
provisions of the act of March 25th, 1804, will cease, in
consequence of the ratification of the treaty of peace with
Tripoli, now advised and consented to by the Senate, I have
thought it my duty to communicate these facts, in order that
Congress may consider the expediency of continuing the same
provisions for a limited time, or making others equivalent.
TH. JEFFERSON.
APRIL 14, 1806.
TUESDAY, April 15.
_Non-Importation Act._
The bill, entitled “An act to prohibit the importation of certain goods,
wares, and merchandise,” was read the third time; and the amendment
adopted was again considered and rejected.
A motion was made to postpone the bill for the purpose of considering the
following resolution:
_Resolved_, That, in consequence of a more favorable course
of conduct on the part of Great Britain, in respect to the
disturbance of the trade of the United States; and entertaining
a hope that the British Ministry, lately established, will
be disposed to a reasonable arrangement of all affairs of
difference between the two nations, the Senate do hereby
postpone the further consideration of the bill, entitled “An
act to prohibit the importation of certain goods, wares, and
merchandise,” to the first Monday in November next.
And, on the question to agree to this motion, it passed in the
negative--yeas 9, nays 19, as follows:
YEAS.--Messrs. Adair, Adams, Hillhouse, Logan, Pickering,
Plumer, Sumter, Tracy, and White.
NAYS.--Messrs. Anderson, Baldwin, Condit, Gaillard, Gilman,
Howland, Kitchel, Maclay, Mitchill, Moore, Smith of Maryland,
Smith of New York, Smith of Ohio, Smith of Tennessee, Smith of
Vermont, Stone, Thruston, Worthington, and Wright.
And on the question, Shall this bill pass? it was determined in the
affirmative--yeas 19, nays 9, as follows:
YEAS.--Messrs. Adams, Anderson, Baldwin, Condit, Gaillard,
Gilman, Howland, Kitchel, Maclay, Mitchill, Moore, Smith of
Maryland, Smith of New York, Smith of Ohio, Smith of Tennessee,
Smith of Vermont, Thruston, Worthington, and Wright.
NAYS.--Messrs. Adair, Hillhouse, Logan, Pickering, Plumer,
Stone, Sumter, Tracy, and White.
So it was _Resolved_, That this bill pass.
FRIDAY, April 18.
_Demand and Threat of Tunis._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate of the United States_:
In compliance with the request of the Senate, of yesterday’s
date, I now communicate the entire correspondence between the
Ambassador of Tunis and the Secretary of State; from which the
Senate will see, that the first application by the Ambassador
for restitution of the vessels taken in violation of blockade,
having been yielded to, the only remaining cause of difference
brought forward by him, is the requisition of a present of
naval stores, to secure a peace for three years; after which,
the inference is obvious, that a renewal of the presents is to
be expected, to renew the prolongation of peace for another
term. But this demand has been pressed in verbal conferences,
much more explicitly and pertinaciously than appears in the
written correspondence. To save the delay of copying, some
originals are enclosed, with a request that they be returned.
TH. JEFFERSON.
APRIL 18, 1806.
SATURDAY, April 19.
The bill for the relief of Hamet Caramalli was read the third time.
_Resolved_, That this bill pass, that it be engrossed, and that the title
thereof be, “An act for the temporary relief of Hamet Caramalli.”
MONDAY, April 21.
_Adjournment._
On motion, it was
_Resolved_, That Messrs. WHITE and ADAMS be a committee on the part of
the Senate, with such as the House of Representatives may join, to wait
on the President of the United States and notify him that, unless he may
have any further communications to make to the two Houses of Congress,
they are ready to adjourn.
_Expunging the Journal._
On motion, that every thing in the Journal relative to the memorials of
S. G. Ogden and William Smith be expunged therefrom, it passed in the
affirmative--yeas 13, nays 8, as follows:
YEAS.--Messrs. Adair, Condit, Gilman, Kitchel, Logan, Mitchill,
Smith of Maryland, Smith of New York, Stone, Thruston, Turner,
Worthington, and Wright.
NAYS.--Messrs. Adams, Baldwin, Hillhouse, Pickering, Plumer,
Smith of Ohio, Tracy, and White.[31]
_Ordered_, That the Secretary inform the House of Representatives that
the Senate, having finished the business before them, are about to
adjourn.
Whereupon, the Senate adjourned without day.
NINTH CONGRESS.--FIRST SESSION.
PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.
LIST OF REPRESENTATIVES.
_New Hampshire._--Silas Betton, Caleb Ellis, David Hough, Samuel Tenney,
and Thomas W. Thompson.
_Massachusetts._--Joseph Barker, Barnabas Bidwell, Phanuel Bishop, John
Chandler, Orchard Cook, Jacob Crowninshield, Richard Cutts, William Ely,
Isaiah L. Green, Seth Hastings, Jeremiah Nelson, Josiah Quincy, Ebenezer
Seaver, William Stedman, Samuel Taggart, Joseph B. Varnum, and Peleg
Wadsworth.
_Rhode Island._--Nehemiah Knight, and Joseph Stanton.
_Connecticut._--Samuel W. Dana, John Davenport, jr., Jonathan O. Mosely,
Timothy Pitkin, jr., John Cotton Smith, Lewis B. Sturges, and Benjamin
Tallmadge.
_Vermont._--Martin Chittenden, James Elliot, James Fisk, and Gideon Olin.
_New York._--John Blake, jr., Philip Van Cortlandt, George Clinton, Silas
Halsey, Josiah Masters, Henry W. Livingston, Gurdon S. Mumford, John
Russell, Peter Sailly, Thomas Sammons, Martin G. Schuneman, David Thomas,
Uri Tracy, Killian K. Van Rensselaer, Nathan Williams, Eliphalet Wickes,
and Daniel C. Verplanck.
_New Jersey._--Ezra Darby, Ebenezer Elmer, John Lambert, James Sloan,
Henry Southard, and William Helms.
_Pennsylvania._--Isaac Anderson, David Bard, Robt. Brown, Joseph Clay,
Frederick Conrad, Wm. Findlay, Andrew Gregg, James Kelly, Michael Leib,
John Pugh, John Hamilton, John Rea, Jacob Richards, John Smilie, Samuel
Smith, John Whitehill, and Robert Whitehill.
_Delaware._--James M. Broom.
_Maryland._--John Archer, John Campbell, Leonard Covington, Charles
Goldsborough, Patrick Magruder, Roger Nelson, William McCreery, Nicholas
R. Moore, and Joseph B. Nicholson.
_Virginia._--Burwell Basset, Matthew Clay, John Claiborne, John Clopton,
Christopher Clark, John Dawson, John W. Eppes, James M. Garnett, Peterson
Goodwyn, Edwin Gray, David Holmes, John G. Jackson, Walter Jones, Joseph
Lewis, Jr., John Morrow, Thomas Newton, jr., John Randolph, Thomas Mann
Randolph, John Smith, Philip R. Thompson, Abram Trigg, and Alexander
Wilson.
_Kentucky._--Geo. Michael Bedinger, John Fowler, Thos. Sanford, John
Boyle, Matthew Lyon, and Matthew Walton.
_North Carolina._--Nathaniel Alexander, Willis Alston, jr., William
Blackledge, Thomas Blount, Evans Alexander, James Holland, Thomas Keenan,
Nathaniel Macon, Duncan MacFarland, Richard Stanford, Marmaduke Williams,
Joseph Winston, and Thomas Wynns.
_Tennessee._--Wm. Dickson, John Rhea, G. W. Campbell.
_South Carolina._--Levi Casey, William Butler, Elias Earle, Thomas Moore,
Robert Marion, David R. Williams, O’Brien Smith, and Richard Wynn.
_Georgia._--Peter Early, Joseph Bryan, Cowles Mead, and David Meriwether.
_Ohio._--Jeremiah Morrow.
_Mississippi Territory._--Delegate: William Lattimore.
_Indiana Territory._--Delegate: Benjamin Parke.
MONDAY, December 2, 1805.
This being the day appointed by the constitution for the annual meeting
of Congress, the following members of the House of Representatives
appeared, produced their credentials, and took their seats, to wit:
_From New Hampshire_--Silas Betton, Caleb Ellis, David Hough,
Samuel Tenney, and Thomas W. Thompson.
_From Massachusetts_--Joseph Barker, Barnabas Bidwell, Phanuel
Bishop, John Chandler, Orchard Cook, Jacob Crowninshield,
Richard Cutts, William Ely, Isaiah L. Green, Jeremiah Nelson,
Josiah Quincy, Ebenezer Seaver, Samuel Taggart, Joseph B.
Varnum, and Peleg Wadsworth.
_From Rhode Island_--Nehemiah Knight and Joseph Stanton.
_From Connecticut_--Samuel W. Dana, John Davenport, jr.,
Jonathan O. Mosley, John Cotton Smith, Lewis B. Sturges, and
Benjamin Tallmadge.
_From Vermont_--Martin Chittenden, James Elliot, James Fisk,
and Gideon Olin.
_From New York_--John Blake, jr., Silas Halsey, Josiah Masters,
Gurdon S. Mumford, John Russell, Peter Sailly, Thomas Sammons,
Martin G. Schuneman, David Thomas, Uri Tracy, Killian K. Van
Rensselaer, and Nathan Williams.
_From New Jersey_--Ezra Darby, Ebenezer Elmer, John Lambert,
James Sloan, and Henry Southard.
_From Pennsylvania_--Isaac Anderson, David Bard, Robert Brown,
Joseph Clay, Frederick Conrad, William Findlay, Andrew Gregg,
Michael Leib, John Pugh, John Rea, Jacob Richards, John Smilie,
Samuel Smith, John Whitehill, and Robert Whitehill.
_From Maryland_--John Campbell, Leonard Covington, Charles
Goldsborough, Patrick Magruder, William McCreery, Nicholas R.
Moore, and Joseph H. Nicholson.
_From Virginia_--Burwell Bassett, John Claiborne, John Clopton,
John Dawson, John W. Eppes, James M. Garnett, Peterson Goodwyn,
David Holmes, John G. Jackson, Joseph Lewis, jun., John
Morrow, Thomas Newton, jr., John Randolph, Thomas M. Randolph,
John Smith, Philip R. Thompson, and Alexander Wilson.
_From Kentucky_--George Michael Bedinger, and Thomas Sanford.
_From North Carolina_--Willis Alston, jun., Thomas Blunt, James
Holland, Thomas Keenan, Nathaniel Macon, Richard Stanford,
Marmaduke Williams, Joseph Winston, and Thomas Wynns.
_From Tennessee_--William Dickson, and John Rhea.
_From South Carolina_--Levi Casey, Elias Earle, Thomas Moore,
and David R. Williams.
_From Georgia_--Peter Early, Cowles Mead, and David Meriwether.
_From Ohio_--Jeremiah Morrow.
_Delegate from the Mississippi Territory_--William Lattimore.
And a quorum, consisting of a majority of the whole number, being
present, the House proceeded, by ballot, to the choice of a Speaker; and,
upon examining the ballots, a majority of the votes of the whole House
was found in favor of NATHANIEL MACON, one of the Representatives for the
State of North Carolina: whereupon Mr. MACON was conducted to the Chair,
from whence he made his acknowledgments to the House as follows:
“_Gentlemen_: Accept my sincere thanks for the honor you have
conferred on me. Permit me to assure you, that my utmost
endeavors will be exerted to discharge the duties of the Chair
with fidelity, impartiality, and industry; and that I shall
rely with confidence on the liberal and candid support of the
House.”
The House proceeded in the same manner to the appointment of a Clerk;
and, upon examining the ballots, a majority of the votes of the whole
House was found in favor of JOHN BECKLEY.
The oath to support the Constitution of the United States, as prescribed
by the act, entitled “An act to regulate the time and manner of
administering certain oaths,” was administered by Mr. NICHOLSON, one of
the Representatives for the State of Maryland, to the Speaker; and then
the same oath of affirmation was administered by Mr. SPEAKER to all the
members present.
The same oath, together with the oath of office prescribed by the said
recited act, were also administered by Mr. SPEAKER to the Clerk.
_Ordered_, That a message be sent to the Senate to inform them that a
quorum of this House is assembled, and have elected NATHANIEL MACON, one
of the Representatives for North Carolina, their Speaker; and that the
Clerk of this House do go with the said message.
A message from the Senate informed the House that a quorum of the Senate
is assembled and ready to proceed to business; and that, in the absence
of the VICE PRESIDENT of the United States, the Senate have elected the
Honorable SAMUEL SMITH their President _pro tempore_: the Senate have
resolved that two Chaplains, of different denominations, be appointed
to Congress, for the present session, one by each House, who shall
interchange weekly. The Senate having appointed a committee on their
part, jointly with such committee as may be appointed on the part of this
House, to wait on the PRESIDENT OF THE UNITED STATES, and inform him
that a quorum of the two Houses is assembled, and ready to receive any
communication that he may be pleased to make to them.
_Resolved_, That Mr. JOHN RANDOLPH, Mr. CAMPBELL of Maryland, and Mr.
CROWNINSHIELD, be appointed a committee on the part of this House,
jointly, with the committee on the part of the Senate, to wait on the
President of the United States, and inform him that a quorum of the two
Houses is assembled, and ready to receive any communication that he may
be pleased to make to them.
The House then proceeded, by ballot, to the appointment of a
Sergeant-at-Arms to this House; and, upon examining the ballots, a
majority of the votes of the whole House was found in favor of JOSEPH
WHEATON.
_Resolved_, That THOMAS CLAXTON be appointed Doorkeeper, and THOMAS DUNN
Assistant Doorkeeper of this House.
_Resolved_, That the Rules and Orders established by the late House of
Representatives, shall be deemed and taken to be the Rules and Orders of
proceeding to be observed in this House, until a revision or alteration
of the same shall take place.
Mr. JOHN RANDOLPH, from the joint committee appointed to wait on the
President of the United States, and notify him that a quorum of the two
Houses is assembled, reported that the committee had performed that
service; and that the President signified to them that he would make
a communication to this House to-morrow, at twelve o’clock, by way of
message.
TUESDAY, December 3.
Several other members, to wit: ABRAM TRIGG, from Virginia; GEORGE W.
CAMPBELL, from Tennessee; and ROBERT MARION, from South Carolina,
appeared, produced their credentials, and took their seats in the House.
_President’s Message._
A Message was received from the PRESIDENT OF THE UNITED STATES, which was
read, and referred to the consideration of a Committee of the Whole on
the state of the Union. [For this Message see Senate proceedings of this
day’s date, _ante_, page 346.]
WEDNESDAY, December 4.
Two other members, to wit: JOHN ARCHER, from Maryland, and WILLIAM
BUTLER, from South Carolina, appeared, produced their credentials, and
took their seats in the House.
THURSDAY, December 5.
Another member, to wit: JAMES KELLY, from Pennsylvania, appeared,
produced his credentials, and took his seat in the House.
FRIDAY, December 6.
_Army Rules, &c._
Mr. VARNUM said it would be recollected that the rules and regulations
for the government of the Army had never been revised since the era of
the present Government; and that consequently the rules and regulations
established during the Revolutionary war still continued in force,
though our circumstances had materially changed. From the present aspect
of affairs, he thought it became necessary that a revision should take
place, that they might be adapted to the provisions under the present
Government. An attempt to this effect had been made during the two last
sessions; and in this House a bill had passed, which had been rejected
in the Senate. He was of the opinion that it became the House, by again
attending to the subject, to do their duty; and if neglect should attach
any where, it should be at the proper door. He, therefore, moved the
following resolution:
_Resolved_, That a committee be appointed to prepare rules
and regulations for the government of the Army of the United
States, and that they have leave to report by bill or otherwise.
Agreed to, and a committee of seven members appointed.
_Yazoo Claims._
Mr. GREGG said he wished to submit to the House a resolution on a subject
of considerable importance, which had engaged the House at several of its
previous sessions, and which was generally known by the name of the Yazoo
claims. The discussions on this subject had occupied much time, and had
excited greater irritation than any other subject within these walls. He
supposed there was no probability that the subject would be permitted,
by the claimants, to sleep, while the act appropriating five millions
was permitted to remain in force. His object was, to repeal that act. By
this step the claimants would not be placed in a worse situation, as the
courts of justice would be open to them. Mr. G. said he did not expect
the House immediately to act on this resolution, though he was prepared,
at once, to go into it. But as it was important, and related to a subject
on which the papers were voluminous, he would be satisfied that it should
lie for some time on the table, the more especially that new members
might become acquainted with it. He then offered the following resolution:
_Resolved_, That so much of an act, entitled “An act regulating
the grants of land, and providing for the disposal of the lands
of the United States south of the State of Tennessee,” as
appropriates any portion of the said lands for the purpose of
satisfying, quieting, or compensating any claims to the said
lands, derived from any act, or pretended act of the State of
Georgia, and neither recognized by the articles of agreement
and cession between the United States and the State of Georgia,
nor embraced by the two first sections of the above-mentioned
act, be repealed.
Ordered to lie on the table.
_Executive Documents._
A Message was delivered from the PRESIDENT OF THE UNITED STATES, by Mr.
COLES, his Secretary, as follows:
“_Mr. Speaker_: I am directed by the President of the United
States to deliver you a Message in writing.”
The SPEAKER having received and opened a packet of considerable size,
observed that the Message was confidential, and thereupon ordered the
galleries to be cleared.
In about one hour and a half, the doors were opened, when it appeared
that part of the communications made by the President were confidential,
and that the members of the House remained under an injunction of secrecy
with regard to them; and that another part was not confidential. This
part embraces, among others, the following documents:
1. A letter from Governor Claiborne to the Secretary of
State, dated October 24, 1805, in which, after stating the
preparations making by the Spaniards at Pensacola and other
places, he says: “I flatter myself that hostilities between the
United States and Spain may be avoided, and that an honorable
adjustment of our differences may ensue. But I am inclined to
think that the Spanish agents calculate on a speedy rupture,
and are making all the preparations that their means permit to
commence the war in this quarter.”
2. Statements respecting the detention of the American gunboats.
3. Correspondence between Governor Claiborne and the Marquis de
Casa Calvo, on exempting the Spanish officers from municipal
taxes.
4. Correspondence between Governor Williams, of the Mississippi
Territory, and Governor Grandpre, with sundry communications to
the Secretary of State on outrages committed in the Mississippi
Territory.
5. Documents to show that the settlement of Bayou Pierre, on
the Red River, at which a principal aggression took place, was
originally made by France while possessing Louisiana, and came
to the possession of Spain only by the general delivery of
Louisiana to her, and as a part of it.
6. Extract of a letter from C. Pinckney, dated August 1805,
as well as one dated September 22, 1805, respecting Spanish
spoliations.
7. Communications from Gov. Claiborne, dated October 24, 1805,
respecting obstructions on the Mobile.
8. Copy of a letter from the commandant of the ship Huntress to
the Secretary of the Navy.
MONDAY, December 9.
Several other members, to wit, from Virginia, EDWIN GRAY, and WALTER
JONES; from New York, HENRY W. LIVINGSTON and ELIPHALET WICKES; and
from Georgia, JOSEPH BRYAN; appeared, produced their credentials, were
qualified, and took their seats in the House.
Mr. LEIB presented a petition of the late crew of the frigate
Philadelphia, representing that they have been advised that under the
maritime regulations of the United States, persons taken by the Barbary
Powers are allowed on their release a pecuniary compensation for
clothing received during their captivity, and some small sum for tobacco
and other articles, usually called jail-money, for which they have
received no compensation; but that these extraordinary expenses have been
deducted from their pay, and praying relief.--Referred to the Committee
of Claims.
TUESDAY, December 10.
Several other members, to wit, from Kentucky, JOHN BOYLE; from New
Jersey, WILLIAM HELMS; from Connecticut, TIMOTHY PITKIN, junior; and from
New York, PHILIP VAN CORTLANDT, appeared, produced their credentials,
were qualified, and took their seats in the House.
_Exportation of Arms, &c._
The House took into consideration the amendments of the Committee of
the Whole to the bill prohibiting, for a limited time, the exportation
of arms and ammunition from the United States; in all of which they
concurred.
Mr. COOK moved to substitute “five hundred dollars” in the room of “one
hundred;” the sum for exporting prohibited articles beyond which is
followed by the forfeiture of the vessel--under the impression that the
provision was too rigorous.
This amendment was supported by Mr. CROWNINSHIELD, and opposed by Mr.
DAWSON, and lost--77 members concurring in the report of the Committee of
the Whole.
On motion of Mr. OLIN, “cannon balls and mortars” were added to the list
of prohibited articles.
On motion of Mr. DAWSON, an amendment was introduced, applying the
penalties of the bill to the exportation of the prohibited articles by
land.
On motion of Mr. NICHOLSON the provisions of the bill were extended to
the Territories of the United States.
Mr. GREGG said he understood the bill under consideration was only a
report in part. He had no disposition to oppose its passage. He only
rose to express his hope that when the committee made a further report,
they would lay before the House the information necessary to enable them
to act intelligently. It had, from the commencement of the Government,
been the practice of the House to call on the Secretary of War to state
the amount of military stores on hand, accompanied by his opinion of
the further supplies deemed necessary. No such thing had yet been done
this session. The House neither knew the quantity of military stores on
hand, nor could calculate the effects of the bill. They did not know
what was the quantity of sulphur and saltpetre on hand, or whether there
was a sufficiency of those important raw materials, in case we should be
embroiled in a war--
The SPEAKER here interrupted Mr. GREGG by observing that there was no
motion before the House.
After a few remarks from Mr. NICHOLSON and Mr. GREGG, on the details of
the bill, it was ordered, on the motion of the former, to be recommitted
to the committee who introduced it, for amendment.
WEDNESDAY, December 11.
Another member, to wit, DANIEL C. VERPLANCK, from New York, appeared,
produced his credentials, and took his seat in the House.
_Sword to General Eaton._
Mr. BIDWELL said that, in the late war between the United States and
Tripoli, distinguished services had been rendered by Mr. Eaton, which had
contributed to the peace lately made with that power. Intimation of this
fact was not only derived from its public notoriety, but likewise from
the President of the United States. He thought these services worthy the
notice of Congress. He therefore submitted the following resolution:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled_, That the
President of the United States be requested to present a
sword, in the name of Congress, to William Eaton, Esq., as a
testimony of the high sense entertained of his gallantry and
good conduct in leading a small band of our countrymen, and
others, through the desert of Libya, on an expedition against
Tripoli, in conjunction with the ex-Bashaw of that Regency;
defeating the Tripolitan army at Derne, with the assistance
of a small part of the naval force of the United States, and
contributing thereby to a successful termination of the war,
and the restoration of our captive fellow-citizens to liberty
and their country.
Referred, on the motion of Mr. VARNUM, to a Committee of the Whole
to-morrow.
_French Spoliations._
Mr. J. RANDOLPH observed that, at the first session of the eighth
Congress, there had been an appropriation of $3,750,000 for the purpose
of paying American claims for spoliations committed by the people of
France, which had been assumed in the convention that transferred to the
United States the sovereignty of Louisiana; that bills, in satisfaction
of these claims, were daily presented for payment at the Treasury; but,
that, on the 31st of this month, the appropriation would cease, when the
sum remaining unexpended would be carried to the credit of the surplus
fund. The Committee of Ways and Means had received a letter, representing
the circumstances, from the Secretary of the Treasury, which had induced
them to come to a resolution to ask leave to present a bill on the
subject.
Leave having been granted--
Mr. J. RANDOLPH made a report, consisting of a letter from the Secretary
of the Treasury, representing the facts stated by him, and a bill,
supplementary to the act making provision for the payment of claims
of citizens of the United States, on the Government of France, the
payment of which has been assumed by the United States, by virtue of the
convention of the 30th of April, 1803, between the United States and the
French Republic.
The bill provides that the balance of the $3,750,000 remaining unexpended
on the 31st of December next, shall not be carried to the surplus fund,
but shall continue applicable to the satisfaction of the claims until
they shall be satisfied.--Referred to the Committee of the Whole on
Monday next.
THURSDAY, December 12.
Another member, to wit, JOHN HAMILTON, from Pennsylvania, appeared,
produced his credentials, was qualified, and took his seat in the House.
BENJAMIN PARKE having also appeared as a Delegate from the Indiana
Territory of the United States, the said oath was administered to him by
the SPEAKER, and he took his seat in the House accordingly.
_General Eaton._
On the motion of Mr. BIDWELL, the House resolved itself into a Committee
of the Whole on the resolution offered yesterday, relative to William
Eaton.
The Chairman read the resolution as follows:
“_Be it enacted, by the Senate and House of Representatives
of the United States of America, in Congress assembled_, That
the President of the United States be requested to present a
sword, in the name of Congress, to William Eaton, Esq., as a
testimony of the high sense entertained of his gallantry and
good conduct in leading a small band of our countrymen and
others through the desert of Libya, on an expedition against
Tripoli, in conjunction with the ex-Bashaw of that Regency;
defeating the Tripolitan army at Derne, with the assistance
of a small part of the naval force of the United States, and
contributing thereby to a successful termination of the war,
and the restoration of our captive fellow-citizens to liberty
and their country.”
Mr. BIDWELL moved to amend the resolution by striking out the word
“sword,” and by inserting in lieu thereof the words, “a medal of gold,
with proper devices.”
Mr. J. CLAY wished the gentleman from Massachusetts would let the word
“sword” stand in the resolution. It was only on extraordinary occasions,
he believed, that a medal was awarded. He was very willing to vote for
presenting a sword on this occasion; but, if a medal was insisted upon,
he should be compelled to vote against the resolution.
Mr. ELLIOT requested that the resolution passed at the last session,
relative to Commodore Preble, and the officers and marines under his
command, might be read.
The resolution was accordingly read, which ordered a medal to be struck,
and a sword to be given to each of the officers.
Mr. E. said, that the objection of the gentleman from Pennsylvania (Mr.
J. CLAY) to the amendment offered by the gentleman from Massachusetts,
(Mr. BIDWELL,) substituting a gold medal in the room of a sword, appeared
to be founded on the idea that a medal would be a meed disproportionate
to the importance of the services, or the official rank of the gentleman
who was the object of the resolution; in other words, that it would be
too great a reward. I did not, said Mr. E., anticipate the objection from
any quarter of the House, and regret extremely that it has arisen. From
the peculiar character with which the gentleman who is intended to be
honored by the resolution, was invested by the Government, it becomes a
point of no small delicacy, and even of some difficulty, to debate the
question at all. We are, indeed, told in the President’s Message, that
the important services of our gallant countryman undoubtedly contributed
to the impression which produced peace with Tripoli. It was proper for
the President to say this, and to say no more; but, in order to enable us
to pay a proper tribute on our part to merit so conspicuous, it becomes
necessary to avail ourselves of information derived from unofficial
sources. In every thing which we can do upon this subject, we are
anticipated by the loud voice of fame, and this consideration has induced
me sometimes to doubt the propriety of doing any thing whatever. It has,
however, always been deemed policy, and even duty, in free governments,
to distinguish by national honors those citizens who have performed
important national services. It is perfectly understood that our brave
countryman commanded, in conjunction with the ex-Bashaw of Tripoli, a
force sufficiently respectable to be considered as an army, and of course
that the popular appellation of General Eaton had been conferred upon
good grounds. In that strong point of view in which the subject will
be seen by liberal minds, inadequacy of force and means, compared with
the greatness of the object and the event, will give greater honor to
the achieving of the enterprise. If we act at all, we ought to bestow
a mark of distinction suitable for a general officer, or an officer of
distinguished rank, to accept. Shall we refuse a medal, the appropriate
reward of the brave Preble, and offer a sword, which was given to
the subordinate naval officers, when the services of Preble, however
meritorious, and greatly meritorious they were, failed of effecting the
object which the world believes that Eaton has accomplished? By the
modern notions of martial etiquette and honor, a sword is the appropriate
token of distinction and reward for officers of subordinate rank. It is
believed that a simple and concise vote of thanks, by the Representatives
of a free people, is the noblest meed of exalted merit and patriotism.
An army, composed in part of Americans, but chiefly of the descendants
of the ancient Grecians, Egyptians and Arabians; in other words, an
army collected from the four quarters of the globe, and led by an
American commander to conquest and glory, is a phenomenon in military
history calculated to attract the attention of the world, not only by
its novelty, but by its real influence and consequence. It ought to
be considered, too, that this army, notwithstanding the singularity
of its organization and character, and the smallness of its numbers
and its means, acted in a cause which might be thought to affect, at
least in some remote degree, the general interest of mankind. Since
the destruction of Cato, and his little senate at Utica, the banner
of freedom had never waved in that desert and barbarous quarter of
the globe; and he who carried it so nobly, in the language of the
resolution, through the desert of Libya, and placed it so triumphantly
upon the African shore of the Mediterranean, deserves to be honorably
distinguished by that country and that Government, to which the
enterprise has added lustre. I repeat it, Mr. Chairman, we can do nothing
in which we are not anticipated by fame. Fame has already devoted to the
name which we are laboring to celebrate, the _monumentum ære perennius_,
the imperishable column of glory, which is the just reward of patriots
only, and which impartial history denies to the mere conquerors and
robbers of mankind.
Mr. SMILIE remarked, that it added to the value of an honor conferred, to
have it bestowed by a unanimous vote. It was not, however, his purpose
to trouble the House with a speech. He should confine himself to making
one or two remarks. He considered it correct that honors conferred should
be apportioned to merit. It was not so important whether the man on whom
they were bestowed, was the commander of an army, or whether he filled
an inferior station. Whatever his station might be, he who conducted
himself well in the service of his country, was entitled to her thanks.
Mr. S. said he would next examine the advantages which the services of
Mr. Eaton had gained to his country, and see whether they were equal to
those which we had derived from the services of other great men. From his
impression, he thought they had been highly advantageous, and equally so
with those rendered by Commodore Preble and his brave associates, whose
conduct he highly approved. He believed that the expedition of Mr. Eaton
had greatly contributed to a peace; and if this were so, he did not know
a more essential service he could have rendered. For these reasons he was
in favor of awarding a medal in preference to a sword.
Mr. QUINCY hoped the House would bestow a medal instead of a sword. He
would say that, on such an occasion, a medal was more proper than a
sword. When the resolution was offered, he had a solid objection to it,
which had, in some measure, been removed by the proposed amendment. A
sword was not an appropriate reward for the service rendered on this
occasion. It was a reward for valor, and mere valor. In this case he
considered the valor displayed as a very small part of the distinction
of Mr. Eaton. He wished that the motion had been submitted to a select
committee, that not only the nature of the compliment, but likewise
the form of the expression, might have been better adapted to what he
conceived to be the character of the service rendered. He did not think
the circumstances stated in the resolution were those which were the
most appropriate. He did not consider the leading a small band through
the desert of Libya, the defeating the Tripolitan army at Derne, the
contributing to a peace, and the liberation of our countrymen, as
characteristic of the services rendered. The peculiar character of those
services was this: that Mr. Eaton, being a private citizen, and called
upon by no official station or duty, had the greatness of mind to plan
a scheme by which the dethronement of a usurper, the restoration of the
lawful heir, and the release of our captive countrymen were to have been
effected. A conception of this kind belonged only to great and superior
minds; and what was sufficient to fill the minds of most men, the
machinery for effecting this plan, was to him but of a secondary nature.
He believed it would be for the reputation of the United States to give
some select and appropriate reward, such as a man like Eaton ought to
receive, and such as it would be to the honor of our country to give.
The question was then taken on Mr. BIDWELL’s amendment, which was carried
by a considerable majority.
Mr. JACKSON said, he entertained a high sense of the extraordinary merit
of the officer who was the object of the resolution under consideration,
and was of opinion that the House should express their highest sentiment
of approbation. To do this, he thought the phraseology of the resolution
ought to be changed in conformity to the ideas of the gentleman from
Massachusetts. He would, therefore, with this view, move that the
committee should rise, with the intention of moving in the House the
reference of the resolution to a select committee for such alteration.
The question was taken on the rising of the committee--yeas 52, nays 54.
Mr. QUINCY suggested the propriety of substituting Barca in the room of
Libya, as the latter was an antiquated word, not to be found in modern
maps.
Mr. BIDWELL observed, that he was not tenacious of the particular form
of the expression. If that suggested by his colleague was deemed most
correct, he had no objection to it. He would, however, remark, that the
word Libya was taken from an expression used by Mr. Eaton in one of his
letters. It was certainly a word used in modern times, although it might
not be in general use.
As to the general question, Mr. B. hoped that, as some gentlemen thought
the resolution went too far, while others thought it did not go far
enough, and, as the general sentiment was, that something ought to be
done by the House, it would be considered that a middle course between
the two Extremes was the fittest, and that there would be a sufficient
magnanimity to give a unanimous vote in favor of the resolution. For
himself, he was willing to have it varied so as to make it conform to the
general sense of the committee, for the purpose of insuring unanimity.
Mr. QUINCY said he was not particularly tenacious of the form of
expression used. He had only risen to state his knowledge as far as it
went. Libya was a word in use among classical men, among poets, but not
among men of business.
The question was put on substituting Barca in the room of Libya, and
passed in the negative by a considerable majority. The resolution, as
amended, was then agreed to without a division.
The committee rose and reported it to the House, who immediately took it
into consideration.
The amendment for substituting “a gold medal with proper devices,” in the
room of “a sword,” being under consideration,
Mr. J. CLAY said, as the Committee of the Whole had reported their
agreement to the amendment, and as a desire had been expressed that there
might be a unanimous vote on the occasion, he wished more information
on the subject than he possessed before he could act upon it. After
having obtained this, he might very probably vote for the amendment. He,
therefore, moved a reference of the resolution to a select committee, who
might obtain the information required from the Secretary of the Navy.
Mr. JACKSON observed, that the names of other gentlemen, who were before
the walls of Derne, had been announced in the newspapers, as having
assisted in the achievements that were the object of the resolution under
consideration. It was not improper to inquire whether they ought to be
associated in the honors awarded by Congress. To ensure, therefore,
unanimity, and bestow proper praise, he hoped the course pointed out by
the gentleman from Pennsylvania would be pursued.
The motion to refer the resolution to a select committee was
carried--yeas 69; and Messrs. BIDWELL, J. CLAY, THOMPSON, of New
Hampshire, MASTERS, GRAY, ARCHER, and CASEY, were appointed a committee.
FRIDAY, December 13.
Two other members, to wit: from Delaware, JAMES M. BROOM, and from
Kentucky, JOHN FOWLER, appeared, produced their credentials, were
qualified, and took their seats in the House.
MONDAY, December 16.
Two other members, to wit: from South Carolina, O’BRIEN SMITH, and from
New York, GEORGE CLINTON, junior, appeared, produced their credentials,
were qualified, and took their seats in the House.
TUESDAY, December 17.
Two other members, to wit: from Virginia, MATTHEW CLAY, and from
Kentucky, MATTHEW WALTON, appeared, produced their credentials, and took
their seats in the House.
WEDNESDAY, December 18.
_Indiana Territory--Slaves--Salt Springs--State Government._
_Ordered_, that the report of a select committee, made the 17th of
February, 1804, on a letter of William H. Harrison, President of a
Convention held at Vincennes, in the Indiana Territory, declaring the
consent of the people of the said Territory to a suspension of the sixth
article of compact between the United States and the said people; also,
on a memorial and petition of the inhabitants of the said Territory; be
referred to Mr. GARNETT, Mr. MORROW of Ohio, Mr. PARKE, Mr. HAMILTON, Mr.
SMITH of South Carolina, Mr. WALTON, and Mr. VAN CORTLANDT.
A petition of the Legislative Council and House of Representatives of
the Indiana Territory was presented to the House and read, praying that
the introduction of slaves into the said Territory may be permitted by
Congress; that the right of suffrage therein may be enlarged; that the
salt licks and springs in the said Territory may be ceded to them on
certain conditions; that a certain description of claimants to land, in
the said Territory, may be permitted to make entry thereof in the mode
therein stated; that no division of the said Territory may take place;
and that the citizens thereof may be permitted to form a State government
as soon as their population will permit the measure.
Also, a petition of sundry purchasers of land settled, and intending to
settle, on that part of the Indiana Territory west of Ohio, and east of
the boundary line running from the mouth of Kentucky River, praying that
the said tract of country may be added to and made part of the State of
Ohio.
_Ordered_, that the said petitions be severally referred to the committee
last appointed; that they do examine the matter thereof, and report the
same, with their opinion thereupon, to the House.
Mr. VARNUM, from the committee appointed on the sixth instant, presented
a bill establishing rules and articles for the government of the armies
of the United States; which was read twice and committed to a Committee
of the Whole on Friday next.
_General Moses Hazen._
On motion of MR. THOMAS the House resolved itself into a Committee of the
Whole on the bill “supplementary to the act entitled an act regulating
the grants of land appropriated for the refugees from the British
Provinces of Canada and Nova Scotia.”
This bill directs the following locations of land and patents to be
granted:
“To Charlotte Hazen, widow of Moses Hazen, sixteen hundred
acres; Elijah Ayre, senior, one thousand acres; Elijah Ayre,
jun., three hundred and twenty acres; and Anthony Burk, two
hundred and fifty acres.”
Mr. Thomas explained the grounds on which this bill is predicated, in
virtue of inexecuted resolutions of the old Congress; when the committee
rose and reported it without amendment: in which report the House
immediately concurred, and ordered the bill to a third reading to-morrow.
TUESDAY, December 24.
Another member, to wit: ROGER NELSON, from Maryland, appeared, produced
his credentials, was qualified, and took his seat in the House.
FRIDAY, December 27.
Two other members, to wit: SETH HASTINGS and WILLIAM STEDMAN, from
Massachusetts, appeared, produced their credentials, were qualified, and
took their seats in the House.
MONDAY, December 30.
Another member, to wit: CHRISTOPHER CLARK, from Virginia, appeared,
produced his credentials, was qualified, and took his seat in the House.
_Road to the Ohio River._
The bill from the Senate to regulate the laying out and making a road
from Cumberland, on the Potomac, to the river Ohio, in the State of Ohio,
was read and referred to a Committee of the Whole on Thursday.
[This bill authorizes the President of the United States to appoint
three Commissioners to lay out a road from Cumberland on the Potomac
to the river Ohio, in the State of Ohio, to be four rods in width. The
Commissioners are directed to make a report to the President of their
proceedings, as well as the expense of making the road passable. The
President is authorized to accept or reject the report in whole or part.
If he shall accept it, he is then authorized to obtain the consent of
the States through which the road may pass; and, having obtained such
consent, to make a turnpike. Fifty thousand dollars are appropriated,
payable first out of the proceeds of the reservation from the sale of
lands in Ohio, and, secondly, out of the Treasury of the United States,
the last sum to be chargeable to the preceding fund.]
TUESDAY, December 31.
Another member, to wit: MATTHEW LYON, from Kentucky, appeared, produced
his credentials, was qualified, and took his seat in the House.
MONDAY, January 6, 1806.
_Impressment of a Revolutionary Soldier’s Son._
The SPEAKER laid before the House a letter received by him from David
Rumsey, representing that his son, though possessed of a protection,
had been impressed by the British; and that, notwithstanding his most
strenuous exertions, he is unable to obtain his release. The letter is
couched in unlettered, but pathetic terms, and concludes in the following
manner: “I lost an estate by lending money to carry on the Revolutionary
war, and I suffered every thing but death by being a prisoner among them
(the British) in Canada. I lay fifteen months in close confinement, when
I bore the rank of full captain; and if this is all the liberty I have
gained, to be bereaved of my children in that form, and they made slaves,
I had rather be without it. I hope that Congress will take some speedy
methods to relieve our poor distressed children from under their wretched
hands, whose tenderest mercy is cruelty.”--Referred to the Secretary of
State.
_Impressed Seamen._
Mr. CROWNINSHIELD observed that, at the last session, there had been a
return made to the House of the American Seamen impressed by British
vessels, which had not been acted upon. Since that period these
impressments had increased in a most astonishing degree. It was a fact
that from 2,500 to 3,000 of our best seamen were detained by the British.
We want the services of this useful class of men. That the attention of
the House may be drawn to the subject, in order that proper measures may
be taken by the Government, I have drawn up the following resolution:--
_Resolved_, That the Secretary of State be directed to lay
before this House a return of the number of American seamen
who have been impressed or detained by the ships of war, or
privateers of Great Britain, whose names have been reported to
the Department of State since the statement was made to the
House at the last session of Congress, mentioning the names of
the persons impressed, with the names of the ships and vessels
by which they were impressed, and the time of the impressment,
together with any facts and circumstances in relation to the
same which may have been reported to him; stating, also,
the whole number of American seamen impressed, from the
commencement of the present war in Europe, and including, in a
separate column, the number of passengers, if any, who may have
been taken out of American vessels coming to the United States
from Europe.
Mr. ELLIOT said that, in seconding the motion of the gentleman from
Massachusetts, he felt it a duty to express a hope that the resolution
would not only be adopted with perfect unanimity, but that we should no
longer stop at the precise point of the adoption of a simple resolution,
calling for information on this interesting subject. The information
which was laid before the House at the last session, with that which
has since been derived from the public papers, has produced a loud
expression of public indignation, which it is our duty to echo with
energy. To prefer every consequence to insult and habitual wrong, is a
sentiment of the Executive, which has been admitted even by its opponents
to be correct and honorable. Has the time arrived when it has become
indispensably necessary to reduce this principle to practice? Do we
suffer insult and habitual wrong? Our merchants call loudly for the
redress of injuries. I hope we shall redress them. Let us extend to them
the arm of national protection, but let us extend it also to another
class of injured citizens; while we give it to the rich, let us not
withhold it from the poor. The groans of our impressed fellow-citizens
mingle with the murmurs of every gale from the ocean! The queen of that
element ought no longer to be suffered to bespangle her diadem with the
tears of American seamen, or to substitute her will and her interest for
the laws of nature and of nations. It is to be hoped that, upon this
subject, we shall take an attitude worthy of the nation--an attitude not
to be abandoned but by obtaining complete justice.
The resolution was then agreed to unanimously.
THURSDAY, January 9.
_Naval Peace Establishment._
Mr. GREGG, from the committee appointed on so much of the President’s
Message as relates to a Naval Peace Establishment, having obtained leave,
submitted a bill in addition to an act, entitled an act supplementary
to the act providing for a Naval Peace Establishment, and for other
purposes; which was referred to a Committee of the whole House on Tuesday.
[This bill repeals the second and fourth sections of the act recited in
the title, authorizes the President to keep in actual service in time of
peace so many of the frigates and other public armed vessels, as in his
judgment the nature of the service may require, and to cause the residue
to be laid up in ordinary, in convenient ports--directs the public armed
vessels in actual service in time of peace to be officered and manned as
the President shall direct, provided that the officers shall not exceed
thirteen captains, nine masters commandant, seventy-two lieutenants,
and one hundred and fifty midshipmen, who are to receive no more than
half their monthly pay while not under orders for actual service, and
provided that the whole number of able seamen, ordinary seamen, and boys,
shall not exceed nine hundred and twenty-five; the President being at
liberty to appoint for the vessels in actual service, as many surgeons,
surgeons’ mates, sailingmasters, chaplains, pursers, boatswains, gunners,
sailmakers, and carpenters, as may in his opinion be necessary.]
TUESDAY, January 14.
The House commenced their proceedings this morning, at eleven o’clock,
in secret sitting, having yesterday adjourned while the doors continued
closed, and while confidential business was depending.
The House continued sitting until three o’clock, when the doors were
opened, and an adjournment ensued.
FRIDAY, January 17.
_Indiana Territory--Slavery._
A memorial and petitions of sundry inhabitants of the counties of
Randolph and St. Clair, in the Indiana Territory, were presented to the
House and read, suggesting the expediency of a division of the Indiana
Territory, and the erection into a separate Territorial government of
a part thereof; of the formation of a Western State; of the admission
of slavery into the said Territory, either unconditional or under
such restrictions as Congress may impose; and, also, praying redress
against certain oppressive acts of the Executive authority of the said
Territory.--Referred to the committee appointed, on the nineteenth
ultimo, on a letter from William Henry Harrison, Governor of the Indiana
Territory.
MONDAY, January 20.
_Importation of Slaves._
The House resolved itself into a Committee of the Whole on a motion of
the tenth ultimo, “for imposing a tax or duty of ten dollars per head
upon all slaves hereafter imported into any of the United States.”
Mr. SLOAN said, he would not take up much of the time of the House in
discussing a resolution, the object of which was so plain as rendered
it scarcely possible to elucidate it. He would read that section of
the constitution which gave Congress the power of legislating on this
subject, which was so clear as to require nothing to be said in addition
to it.
The ninth section of the first article is in these words:
“The migration or importation of such persons as any of the
States now existing shall think proper to admit, shall not be
prohibited by the Congress, prior to the year 1808; but a tax
or duty may be imposed on such importation, not exceeding ten
dollars for each person.”
I conceive, said Mr. SLOAN, that, by this article, slaves are made an
article of importation, in common with other articles imported. Congress
have the same power to lay a tax of ten dollars a head on them, as they
have to lay an unlimited tax on every other imported article. I presume
every member of this committee has duly considered the subject, and has
made up his mind on the expediency of the resolution. For my own part I
can see no reason why this article of importation should remain without
duty, while all others pay one. For these reasons I hope the committee
will agree to the resolution.
The article of the constitution, together with the resolution, having
been read at the request of Mr. DANA, he called upon the mover of the
resolution to assign his reasons for using the word _slaves_ instead of
the word _persons_, the term used in the constitution.
Mr. CLARK hoped the committee would not agree to the resolution. He was
no advocate for a system of slavery; but he supposed the adoption of
this resolution could only be considered as expressing the opinion of
Congress, of the impropriety of importing slaves. As to the revenue to
be raised, it was too inconsiderable to be worthy of any attention. He
was opposed to the resolution, because it appeared to him that it would
be partial in its operation, inasmuch as there were only two States,
South Carolina and Georgia, which did not prohibit the importation of
slaves, at which it must consequently be considered as levelled. The more
he reflected on the subject, the more he doubted the propriety of that
species of legislation which bore exclusively on a particular section of
the United States, nor did it become the Government of the United States
to interfere with the internal police of the States, which were, in this
respect, sovereign and independent. For these reasons, he trusted the
resolution would not prevail.
Mr. EARLY rose barely to correct the gentleman from Virginia, (Mr.
CLARK,) in the remark he had made relative to the State of Georgia. There
existed no law in that State permitting the importation of slaves; on the
contrary, there was an article in their constitution prohibiting it.
Mr. MARION said, this was to be considered as a question of revenue.
With regard to the policy of importing slaves, that was left, until the
year 1808, exclusively to the States. If this resolution was intended to
express the disapprobation of the General Government of the legitimate
act of a particular State, he should deem it proper. As well might
Congress undertake to express its disapprobation of the election of a
Governor chosen in a particular State; his objection arose from the
partiality and injustice of the resolution. If in operation it was as
extensive as it appeared to be in words, or if he thought it would
prevent a single slave from being imported into the United States, it
should receive his hearty support; but the very limitation of the tax
by the constitution to ten dollars, was intended to prevent Congress
from laying a duty which should prevent the importation; it could not,
therefore, prevent the importation of a single slave. It followed that
revenue could be the only object. Whether, for this alone, we should
lay a tax that would fall exclusively on one State, was worthy of
consideration. That State already bore her full proportion of the public
burdens, and even more than her proportion. In point of numbers, she
contained about one-sixteenth part of the Union, and therefore, on the
basis of numbers, ought not to be called on to pay a quota of more than
six per centum on the whole amount of taxes. Her quota, on the principle
on which direct taxes were imposed, ought not to be more than four per
centum and four hundredths. On examination, it will be found that the
duties paid in South Carolina on imported articles, amount to between
one-thirteenth and one-fourteenth part of the whole duties paid into the
Treasury, which is between seven and eight per cent. of the whole. When
it is considered that no goods are imported into South Carolina for the
consumption of the other States, for it was known, Mr. M. said, from
the operation of causes which he would not undertake to explain, that
goods were considerably higher in Charleston than in the other States,
and that, consequently, a cheaper supply of goods could be obtained from
other States than from South Carolina; and when, to this circumstance,
it was added that South Carolina paid her portion of duties on East
India goods, which she derived from the importation of other States, it
would be found that she paid a still higher proportion of duties. Under
these considerations are Congress prepared to lay a duty on her alone,
for such it certainly was? Coming from the State he did, Mr. M. said it
might be supposed he was personally interested in this question; but
the fact was, he was as free to act on it as any other member of the
House. He had uniformly opposed the importation of slaves, and were he
to collect the sentiments of his constituents from the vote of their
immediate Representatives on a recent occasion, it would be found that a
majority of them were likewise opposed to it. As to himself, he was, in
truth, individually interested in preventing the importation of slaves.
He never had purchased, nor should he ever purchase a slave. The greater,
therefore, the restriction imposed on the importation, the more would it
raise the value of those he possessed.
Mr. SOUTHARD declared himself in favor of the resolution. His only
regret was, that it was not in the power of Congress to lay a more
effectual tax. He thought Congress had a right to declare their opinion
of a practice so injurious to the country. The idea was held up in the
constitution that slaves were a proper object of taxation. He believed
the tax would prevent few persons from being imported. About two years
ago a similar resolution had been agitated in this House. It was then
said the Legislature of South Carolina were in session, and that there
was a great probability of their repealing the obnoxious law. On this
ground the consideration of the resolution was postponed. Last session, a
similar resolution was brought forward, and was, owing to a pressure of
business, again postponed. Mr. SOUTHARD said there was no doubt, if the
resolution had been acted upon two years ago, and Congress had exercised
their constitutional power, it would have prevented a vast number of
slaves from being imported. It is said, however, that this resolution
will operate partially on South Carolina, but it has not South Carolina
particularly in view, but principle; and if that principle be correct,
let it operate where it may, let the people of South Carolina feel the
weight of it; it is right they should. As the proposed tax may prevent a
few, perhaps a single one of these miserable creatures from being torn
from the bosom of their family and country, in violation of the ties
of nature and the principles of justice, the time of Congress will be
well taken up in imposing it, nor has any State a right to complain of
such treatment; for, if the traffic is profitable, they can well afford
to pay for it. Mr S. concluded, by declaring that, not revenue, but an
expression of the national sentiment was his principal object.
Mr. DANA said, that black men were not the only men imported into the
United States. If the object of this tax was only to obtain revenue,
(and it really appeared to him that we wanted all the revenue we could
get,) it might, perhaps, be right to get as much revenue as possible from
the importation of men. To have this point elucidated, and to learn the
precise grounds of the mover in offering this resolution, he moved to
substitute the word _persons_, in lieu of the word _slaves_.
Mr. ALSTON said, in seconding this amendment, his object was to preserve
the words of the constitution, instead of deviating from them into the
language of the resolution. He defied gentlemen to show him the word
slave in the constitution; no such word was found in the constitution.
Here Mr. A. read that part of the constitution already recited, and
then proceeded: The word here used, is _person_, not _slave_. Where the
gentleman found the latter word, I am altogether at a loss to know. In
laying this tax on slaves, we shall defeat a very important part of the
constitution, which says all taxes and duties shall be uniform.
Mr. SMILIE.--There is no doubt but, by the constitution, we have a right
to prohibit, so far as the imposition of a tax of ten dollars can have
the effect, the importation of slaves or freemen, provided we think good
policy and humanity justify the measure. And if the House do entertain
the opinion, that the policy of the United States requires a prohibition
of the emigration of all such persons, they will agree to the amendment:
they have a right to do it. But I do not believe this is the disposition
of the present House, or of any that has sat under the constitution.
The gentleman rests his amendment on the word _person_, and concludes
it to be necessary, because the word slave is not to be found in the
constitution. I rejoice that that word is not in the constitution; its
not being there does honor to the worthies who would not suffer it to
become a part of it. What are the facts connected with this business?
They are these: When Congress were sitting and legislating for a free
people, they determined not to stain the constitution with that word.
The thing was perfectly understood in the convention. The power, as
it stands modified, was the result of that spirit of concession and
compromise which, in this as in many other instances, characterizes the
constitution. With regard to the allegation, that this tax would operate
partially and severely, I see, on reflection, nothing in it. The right
to impose duties on all other articles except this, is unlimited, and
the State of South Carolina, in this instance, has the power completely
to get rid of this tax. She has only to repeal her law, and she will
have no tax to pay. But if that or any other State pursue a trade which
justice or good policy forbid, they must submit to the constitutional
powers of Congress. We are placed now in a delicate and trying situation:
the resolution is actually before us; and the only question is, whether
we will or will not declare our approbation of this iniquitous traffic.
As to revenue, it is no object to me. Revenue, no doubt, will grow out
of the measure, but that alone would not induce me to patronize it. I
have another and a higher object--to express our disapprobation of this
traffic, to manifest to the world that, as the representatives of a free
people, we will, as far as we can, express our opinion of it.
The CHAIRMAN here interrupted Mr. SMILIE, by stating that the question
was on the amendment, to which the remarks of gentlemen must be confined.
Mr. FISK hoped that the amendment would not prevail. Gentlemen tell us
the resolution must be in the words of the constitution, and that it
is partial. He would consider how far this argument would carry them.
It is observed that it is improper to call in question the rights of
the States; but, according to the argument of the gentleman from North
Carolina, if the State of Massachusetts should prohibit her citizens
from consuming tea or coffee, Congress would be under the necessity of
repealing the duties on those articles, and in this way many other acts
of the States would prevent Congress from exercising their constitutional
powers. These things are in the power of the States; they are free
to exercise them or not to exercise them. When they conduce to their
benefit, they will exercise them; and when they cease to be beneficial,
they will abandon them. Congress have the same right to lay a tax in one
case as in the other, according as the public good will be advanced by
the imposition, as well of the limited tax on slaves, as of the unlimited
tax on other objects. In this resolution there is no partiality: it
applies to all the States, as well those who have prohibitory laws or
constitutions as those who have not. For it is incorrect to say, because
some States have constitutional provisions on the subject, the tax is
therefore inapplicable to them, because they have the power of altering
their constitutions, and what is in force to-day may be abandoned
to-morrow. To agree to the amendment would be, to hold out the idea to
foreigners, about to escape from the tyranny and injustice of Europe,
that we meant to refuse them an asylum in our country. It is, indeed,
to be presumed that the mover of the amendment is against the whole
resolution, and brought forward the one to defeat the other.
Mr. BEDINGER moved that the committee should rise. He said the subject
was important; it was late in the day, and he thought they ought to take
more time to reflect on it before they came to a decision.
This motion having been agreed to--ayes 64--the committee rose, reported
progress, and asked leave to sit again.
Mr. DAWSON hoped that they would not have leave, but that the resolution
would be postponed till some time in May.
Mr. NICHOLSON said, he hoped the committee would have leave to sit again,
and called for the yeas and nays on the question, which being taken,
were, yeas 98, nays 15.
TUESDAY, January 21.
_Contingent Expenses._
Mr. EARLY said he held in his hand a resolution instructing the
Committee of Ways and Means to inquire into the expediency of requiring
the Secretaries of State, Treasury, War, and Navy, to lay before
Congress at the opening of every session a detailed statement of the
expenditure of the moneys appropriated to the contingent expenses of
their departments. He would briefly state his reasons for offering this
motion. The moneys for the contingent purposes of the Government were
the only description of expenditures which were not controlled by the
House. Over every other branch of expenditure the House exercised a
control by specifying with definite clearness the respective objects of
expenditure when an appropriation was made. But the moneys appropriated
for contingent purposes, were left exclusively to the discretion of the
different officers presiding over the several departments, in which
they were alone governed by their own will and judgment. The only check
which could be exercised over this description of expenditures, was to
require a detailed statement of disbursements. It would be recollected
that a committee had been appointed some time since to investigate the
accounts of several officers of the Government, and that they made a
detailed report to the House. About that time it had been contemplated
to take the step which he now suggested, but for some reasons it had
never been taken. Mr. EARLY said he by no means wished to be understood
as entertaining the idea that the discretion with which the heads
of department were clothed had been abused. He knew of no facts to
justify such an opinion. It was on the ground of principle only that he
offered this resolution. Through the four great departments which he
had mentioned, passed nine-tenths of the whole money appropriated by
Congress; and on looking at the statement contained in the estimates
of the Secretary of the Treasury, he found that more than one-fourth
of the whole amount of money estimated as necessary for the several
departments, was for contingent purposes. By that statement it appeared
that the whole expenses of the Department of State were $27,000, of
which $14,400 were for contingent purposes. Under the head of foreign
intercourse, $182,500 were estimated as necessary; of which $76,000 were
for contingent purposes. The estimates for the Treasury Department were
$72,100, of which $12,100 were for contingent purposes. The estimates
for the War Department were $29,400, of which $2,000 were for contingent
purposes. The estimates for the Military Establishment were $900,500,
of which $18,000 were for contingent purposes. The estimates for the
Navy Department were $21,100, of which $2,700 were for contingent
purposes. The estimates for the Naval Establishment were $867,800, of
which $411,900 were for contingent purposes. Mr. EARLY said he presumed
this view of the subject would justify him in the eyes of the members of
the House in offering the resolution. The resolution was agreed to, as
follows:
_Resolved_, That the Committee of Ways and Means be instructed
to inquire into the expediency of making provision by law,
for requiring the Secretary of State, the Secretary of the
Treasury, the Secretary of War, and the Secretary of the
Navy, to lay before Congress annually a detailed account of
the expenditure of the fund appropriated for the contingent
expenses of their several Departments, respectively.
_Importation of Slaves._
The House again went into a Committee of the Whole on Mr. SLOAN’s
resolution for imposing a tax of ten dollars upon every slave imported
into the United States.
Mr. CLARK said it was essentially necessary to the passage of a law on
this subject that the amendment should prevail. The original resolution
contemplated a certain description of persons as slaves; the object of
the amendment was to extend it to all persons imported into the United
States. Suppose a cargo of slaves should arrive. Will they be entered at
the custom-house as slaves? No. They will be recognized as a different
description of persons, and by that means the payment of the tax will be
evaded, and the law have no possible effect.
Mr. DANA.--Notwithstanding my great desire to gratify the gentleman from
New Jersey, to gratify whom would afford me great pleasure, yet in the
present case, with the best disposition in the world, I cannot do it.
The amendment appears to me to be very consistent with the principles
on which the resolution was offered. I understood it as a proposition
of revenue relative to the importation of a species of men that is
profitable to our merchants. I thought the revenue would be extended by
taking in the consumption of a larger class of men, who might, therefore,
be very fairly taxed. I could scarcely have expected that the gentleman
should have travelled over the mountains, and have there counted the
countless millions of acres spread out as a beneficent asylum for poor
emigrants from Europe, much less that he should have so eloquently
portrayed the oppression of England and France, and blended the number
of persons about to occupy those western acres with the simple question
of revenue now before the House. Gentlemen have brought this forward as
a question of revenue. May we not be permitted to take them on their
own ground? If, instead of revenue, their object be a condemnation
of the trade, let them come out. The gentleman from New Jersey, with
his knowledge, cannot be so ignorant as not to know that there are
other persons besides slaves brought into the country, who are deemed
beneficial to the community; are hardy and industrious, and that the
price paid for their passage affords a profit to our merchants. Whether
this description of imported persons is so beneficial as, in policy,
not to be taxed, is one thing. By omitting to tax them, we virtually
give a bounty. They may not be so valuable to the State as to justify an
exemption from all taxation.
Mr. MACON (Speaker) said the State of which he was in part a
representative, some time after the law now under consideration passed in
a neighboring State, came to a resolution for amending the constitution,
to give Congress the power of prohibiting the importation of slaves
altogether, which was sent to the Legislature of the several States,
many of whom had concurred in it, or in one similar to it. This showed
the sense of the States as to this worst of all traffics. No person
could more regret the conduct of South Carolina than he did. Perhaps
coming from an adjoining State, his feelings might give him different
impressions from that which they ought to do, although he was not
sensible that this was the case. But it always seemed to him that this
measure was nothing more nor less than arraigning the conduct of a State
Legislature, a Legislature that was nearly equally divided, as pointing
at them the finger of reprobation of the whole nation.
Mr. SOUTHARD said, the object of the resolution was to lay a tax of ten
dollars on slaves imported into the United States. The amendment did
not correspond with the spirit of the constitution; for it would not be
contended that the convention ever meant to place free white persons
wishing to emigrate to the United States under the same embarrassment
as slaves. The importation of the latter had been considered as a great
injury; but he would ask if the emigration of oppressed Europeans was
an injury? We have only to look over the United States to see the large
number, as well as the respectability of those who have been obliged to
pay their passage by binding themselves out for a term of years. It was
only necessary for gentlemen to view this subject dispassionately for a
moment, to reject the amendment. He would ask, if the amendment carried,
whether one member would vote for the resolution? He believed not, as it
would be a greater evil to prevent the emigration of whites, than the
importation of slaves; as the importation of the latter would be limited
to the year 1808, when he had no doubt it would be prohibited by the
unanimous vote of Congress.
Mr. DANA.--If I understand the gentleman from New Jersey right, he
imagines the amendment is not in compliance with the spirit of the
constitution, inasmuch as he is of opinion that the ninth section of the
first article ought to be restricted in fair meaning to slaves. It is in
the following words. [Mr. DANA here read the section.] It is, said he,
indeed difficult for me to understand, how an amendment in the very words
of the constitution, without the change of a single term, can violate
its spirit. Because the same words are used, is it to be inferred it is
contrary to the spirit of the constitution? I am sensible the amendment
changes the complexion of the resolution; but while it embraces others,
it includes likewise those persons in the resolution. Perhaps it may
include some persons who ought to be excluded; but it should be observed
that this is only a resolution for settling the principle, and that the
subordinate details may be settled in a bill. Gentlemen will not contend
that the importation of all descriptions of white persons is beneficial.
I recollect one State into which a cargo of convicts was imported, which
a law was passed to prohibit. The amendment then merely involves the
question, whether the resolution shall be confined to slaves, or be
extended to others.
The question was then taken on Mr. DANA’s amendment, to substitute
persons in the room of slaves, and passed in the negative, only 32
members rising in favor of it.
Mr. EARLY.--I wish for the attention of the committee while I submit a
very few observations on the resolution under consideration, which are
intended to go to a single point which has been but slightly noticed
by the honorable speaker, but which may be placed in some points of
view that are important. I mean to consider the subject as a matter of
feeling, in relation to the State on which it is about to bear. To her
it is not unimportant. The object of the resolution certainly is either
to point the disapprobation of this nation at the practice in question,
or to raise a revenue from that practice. It is either one, or a union
of both these ends. If the object be to point the disapprobation of the
nation against South Carolina, I pray gentlemen to pause and reflect on
the consequences of such a policy; and I beg all to recollect that they
are interested as well as South Carolina with regard to such policy.
Those who regard either the feelings of one State, or the peace and
harmony of the whole nation, will do well to reflect before they adopt a
policy bottomed on such a principle.
As it may be, that the measure is entertained as a source of revenue, if
this is the object, I will ask one question. Is the price they are to get
worth the evil they create? Is the petty sum of $40,000 or $50,000 of
so much moment? Is it a sufficient object to this Government to induce
them to adopt a measure, which will irritate and wound the feelings of a
respectable member of the confederacy? Forty or fifty thousand dollars
is a petty sum to this Government; but it is not so to a State; it is
not so to South Carolina. Let gentlemen, if they please, attempt to get
round the question, by saying that this resolution is not exclusively
confined to South Carolina--the evasion is unworthy of them. The whole
nation knows, South Carolina knows, and we know, what is intended by it;
and it is the same as if South Carolina was on the face of it. The sum,
though trifling to the United States, is not so to South Carolina. The
revenue intended by this resolution to be drawn from South Carolina, will
equal, if it does not exceed, the whole expense of her government. What,
then, will be the situation of the people of that State, in case this
resolution is adopted? It will be the situation of a people who pay a
double tax. They will pay a tax for the support of their own government;
revenue will be drawn from them for national purposes, as from the other
parts of the Union; and they will be burdened with an additional tax,
equal to the whole expense of their State Government. I will ask now,
whether the evils attending such an imposition, and the reflections
arising from it, will not necessarily irritate, wound, and offend the
feelings of the people of that State? Whether, then, we consider it as
a measure to evince the disapprobation of the nation, or as a source
of revenue, it flows from a policy equally questionable. The people,
sir, of South Carolina cannot avoid the reflection, that the finger of
scorn is pointed at them; that a double tax is imposed on them. What
will be the consequence? That which every gentleman must foresee. It
is not difficult to foresee it, because it is a natural consequence,
such as must follow whenever the common feelings of human nature are
entertained. The consequence will be, an alienation of attachment to, and
respect for this Government. I ask gentlemen to put the question home to
themselves, whether the revenue they expect is worth the sacrifice? This
is a question which ought never to be stirred in our national councils.
Though older men than myself might better tell the committee than I can
do, the effect which introducing this subject in any shape invariably has
had on the feelings of the Government, or on the representatives of the
nation, I will undertake to give my opinion of it. Sir, I have always
understood that this subject was found most difficult to be adjusted
in the Federal Convention. I have always understood that, when brought
before the councils of the nation, in any period or in any shape, a
fervor of feeling and warmth of sentiment never failed to disturb the
public harmony. Every man knows the effect of the first application to
Congress on this subject, by a man at the head of a noted body of men in
Pennsylvania or Delaware, of the name, I believe, of Warner Mifflin. All
know the effects of an application of a more recent date, in the other
branch of the Legislature, from some friendly people northwardly. All
know the effects of the celebrated resolution laid on our table the last
session, by the same gentleman who has favored us with the resolution
under consideration, to make free all persons born of a mother in the
Territory of Columbia, after a certain period. All will recollect the
height to which the feelings of men were wrought on those occasions. It
is because the agitation of this subject always had and always will have
the same effect, that I think it ought never to be introduced into this
House.
Mr. BROOM.--I agree with the gentleman from Georgia in expressing the
wish that this resolution had never been brought forward, inasmuch as I
wish that the State of South Carolina, in imitation of her sister States,
had never given occasion for it. It is said that this is a question which
has always produced agitation in this House whenever it came before it.
If this be any argument at all, it is in favor of bringing the discussion
to a close, by extinguishing the cause which produces it; for, until this
shall be the case, there will always be found men in this House to offer
a similar resolution, the result of which may be a like agitation. The
question is not now whether this resolution shall be introduced, but,
as it is introduced, whether it shall not be put to sleep for ever, by
exercising at once our constitutional powers.
I need not dwell on the great number of slaves concentrated in the
Southern States. At the time of taking the census they amounted to
832,000. In the State of South Carolina there were 146,000 slaves, and
199,000 whites. I need not expatiate on the greatness of this evil. Not
only South Carolina may suffer, but all the other neighboring States may
share the evil. Those States who are ashamed to avow a participation in
the trade, may be indebted to her for an augmentation of their slaves;
and the evil may extend to those States who now believe themselves
secure. If these people were to rise on their masters, I ask if the whole
Union would not be bound to assist in putting them down? It is not,
therefore, South Carolina alone, but all the members of this confederacy,
that may be disturbed by the accumulation of this evil. It is from
these considerations--because I wish this traffic to be checked, and
because, as an object of revenue, I am for making the most of the evil,
and because we may be enabled thereby to exempt articles of the first
necessity from at least a part of the duties imposed upon them--that I
am of opinion that we ought not, in justice, to exempt this article any
longer from duty.
Mr. EARLY said that he was far from intending to charge the mover of the
resolution with a disposition to wound the feelings of any member of the
House. He had said nothing to that effect. He would, on the contrary,
observe that he considered the manner of the gentleman mild, and such
as had not rendered him in the least obnoxious to such a charge. He had
said that the feelings of South Carolina would be probably wounded by the
measure. He had no disposition, however, to charge the gentleman from
New Jersey (Mr. SLOAN) with, such an intention. The task of wounding the
feelings of South Carolina (if the observations of a gentleman on this
floor could wound her feelings) had been reserved for the gentleman’s
friend from Delaware, (Mr. BROOM,) who had taken occasion to heap on
her head, so far as related to the importation of slaves, every term of
reproach which his imagination could bring to his aid. If he expected he
would be imitated in such a procedure, he would be mistaken. One word in
reply to an observation which he had applied to the State of Georgia.
He had said that the evil was not confined to South Carolina, but that
it extended to the neighboring States--that it extended to the State of
Georgia, who, though ashamed to avow her approbation of it, participated,
notwithstanding, with South Carolina in it. Give me leave to say, said
Mr. E., so far as relates to the State of Georgia, that she has not
been--that she never will be--ashamed to avow what she does; and that,
so far from approving this trade, she took a step six or eight years
back, that had not then been taken by any other State: she prohibited the
traffic by an express injunction of her constitution. Let the gentleman
from Delaware show any thing in his own constitution like this. On this
occasion the opponents of the resolution were disposed to treat the
subject with temper. Heretofore, the temper which had been displayed had
originated with them, but now it has proceeded from a different quarter.
The debate here closed for this day. The committee rose about four
o’clock, and obtained leave to sit again.
WEDNESDAY, January 22.
_Importation of Slaves._
The House again went into a Committee of the Whole on Mr. SLOAN’s
resolution for imposing a tax of ten dollars upon every slave imported
into the United States.
Mr. DAWSON.--Every gentleman who has spoken on this unfinished business
has expressed his regret at its introduction--none feel it more than I
do; of the sincerity of which declaration I mean to give a proof by the
motion which I shall make to you.
If this regret was felt at the introduction, it must be increased by the
course which the argument has taken, and by the warmth which has attended
it. At a time like this, when depredations are committed on our commerce,
coasts, and harbors; when our property is plundered, our citizens and
our country maltreated and insulted, it would seem to me to be more wise
and more patriotic to cherish a spirit of accommodation, and to unite
all our efforts and wisdom in adopting those measures best calculated to
meet this state of things, to support our just claims, to vindicate our
violated rights; and not to introduce subjects which will inevitably
create division, which will excite one section of the continent, one
portion of our fellow-citizens, against another, thereby disturbing that
harmony and union of councils so necessary for the good of the whole.
Mr. J. C. SMITH supported the resolution, and vindicated the State he
represented from any imputation from not having a similar feature in her
constitution to that of the constitution of Georgia. He observed that
the constitution of Connecticut, having had its origin about two hundred
years ago, had not foreseen the present state of things; but he begged
permission to say, that Connecticut had never received into her bosom any
of the species of property alluded to.
Some recriminations ensued between several members, on the participation
of the traders of some of the New England States in carrying on the slave
trade.
When the question being put, the resolution was agreed to--yeas 79.
The committee having risen, and the House being resumed, took the report
of the committee into consideration.
Mr. CLARK, having made a few remarks against agreeing to the resolution,
asked for the taking of the yeas and nays.
The main question was then taken by yeas and nays on agreeing to the
resolution--yeas 90, nays 25, as follows:
YEAS.--Isaac Anderson, John Archer, David Bard, Burwell Basset,
Silas Betton, Barnabas Bidwell, Thomas Blount, James M. Broom,
Robert Brown, John Boyle, John Chandler, Martin Chittenden,
John Claiborne, George Clinton, jun., John Clopton, Frederick
Conrad, Orchard Cook, Leonard Covington, Richard Cutts, Samuel
W. Dana, Ezra Darby, John Davenport, jun., William Dickson,
Caleb Ellis, Ebenezer Elmer, William Eli, William Findlay,
Jas. Fisk, John Fowler, Charles Goldsborough, Edwin Gray,
Andrew Gregg, Silas Halsey, John Hamilton, Seth Hastings,
William Helms, David Holmes, David Hough, John G. Jackson,
Walter Jones, James Kelley, Thomas Kenan, Nehemiah Knight, John
Lambert, Michael Leib, Joseph Lewis, jun., Henry W. Livingston,
Matthew Lyon, Nicholas R. Moore, Jeremiah Morrow, Jonathan O.
Mosely, Jeremiah Nelson, Roger Nelson, Thomas Newton, jun.,
Gideon Olin, Timothy Pitkin, jun., John Pugh, Josiah Quincy,
John Rea of Pennsylvania, John Russell, Peter Sailly, Thomas
Sammons, Ebenezer Seaver, James Sloan, John Smilie, John Cotton
Smith, John Smith, Samuel Smith, Henry Southard, Richard
Stanford, Joseph Stanton, William Stedman, Lewis B. Sturges,
Benjamin Tallmadge, Samuel Tenney, Philip R. Thompson, Uri
Tracy, Abram Trigg, Philip Van Cortlandt, Joseph B. Varnum,
Daniel C. Verplanck, Peleg Wadsworth, Matthew Walton, John
Whitehill, Robert Whitehill, Eliphalet Wickes, Marmaduke
Williams, Nathan Williams, Alexander Wilson, and Joseph Winston.
NAYS.--Willis Alston, jun., George M. Bedinger, William
Butler, John Campbell, Levi Casey, Christopher Clark, Jacob
Crowninshield, John Dawson, Elias Earle, Peter Early, James
Elliot, James M. Garnett, Robert Marion, Josiah Masters,
William McCreery, David Meriwether, Thomas Moore, Thomas M.
Randolph, John Rhea of Tennessee, Thomas Sanford, O’Brien
Smith, Thomas Spalding, Thomas W. Thompson, David R. Williams,
and Thomas Wynns.
_Ordered_, That a bill, or bills, be brought in pursuant to the said
resolution; and that Mr. SLOAN, Mr. FISK, and Mr. DANA, do prepare and
bring in the same.
MONDAY, January 27.
_Detachment of Militia._
An engrossed bill authorizing a detachment from the Militia of the United
States was read the third time.
Mr. TALLMADGE, of Connecticut, said he had never recollected an instance,
since he had been honored with a seat in that House, when a question
of equal magnitude with the present, had passed on, from the report
which was first made, to the third reading of the bill, and there had
scarcely been a remark submitted to the House to elucidate or justify
the measure. We have before us a bill of no trifling import; it provides
for organizing, arming, and equipping, a military force of one hundred
thousand men, and it appropriates two millions of dollars to enable the
Government to bring this force into the field. Now this bill contemplates
some serious intentions on the part of the Government, or else it is a
solemn mockery, a mere political farce. At any rate, we shall hereby,
if the bill passes into a law, lock up two millions of dollars in the
Treasury, which must remain appropriated and sequestered from any other
use, however urgent and pressing the calls of our country may be from
any other quarter. Under the present aspect of this bill, as it has been
presented to my mind, I shall be constrained to give it my unequivocal
negative, unless some gentleman shall be able to remove my objection
against its final passage. I, therefore, take the liberty to call on the
honorable chairman of the committee, who reported the bill, (Mr. VARNUM,
of Massachusetts,) to state to the House the reasons which induced him to
submit the bill now under consideration, and to request of him, for my
particular information, to answer the two following queries, viz:
1st. What special objects are to be answered by the passage of this bill?
2d. What effect will such a law have upon the militia systems of the
different States in the Union?
I make these inquiries of the honorable gentleman from Massachusetts,
who reported this bill, from a knowledge of the high station which he
holds in the militia of that State; and from a hope that he has fully
weighed all the relative bearings of this bill, with the advantages and
inconveniences thence resulting, that he may be able to confirm the
wavering, and to satisfy those who doubt respecting the provisions of
this bill.
In the public Message of the President of the United States, communicated
to Congress on the third of December last, we are informed that
spoliations are committed on our commerce, and our seamen are impressed
on the high seas; while aggressions and insults are offered to the
citizens of the Territories of Orleans and the Mississippi, by the
regular officers and soldiers of the King of Spain. Some of these
injuries may admit of peaceable remedy, but some of them are of a nature
to be met by force only, and all of them may lead to it.
From the fullest examination I have been able to make of this public
document, (and I lay no claim to private communications,) I can discover
but one point on which this great military force can be brought to bear.
Is it possible, then, Mr. Speaker, (and I do hope that the honorable
chairman will give us an answer to the inquiry,) is it possible, I say,
that an apportionment must be made on all the militia of the United
States, from Georgia to the District of Maine, that the President of the
United States may be enabled to repel an invasion, or chastise an insult
offered to our citizens within the district of Orleans? If this be not
the object, the inquiry returns with redoubled force--what is it? Or,
are we to conclude that all this parade and expense is to form an army
on paper, and to hold out to the world the high sense we entertain of
our national honor and dignity, and the promptitude and vigor with which
we are ready to defend it? Can it be possible, sir, that gentlemen can
be serious in offering this preposterous parade of military defence,
when the recommendation of the President, and the voice of our country,
call so imperiously for something more efficient? Will the European
powers believe that you are in sober earnest, when they shall read the
provisions of this bill? Will the people of our own country be satisfied
with this kind of military farce? The former, I am persuaded, will not be
deceived by it; the latter cannot fail to be disgusted with this pitiful
parade. Whatever may be my opinion of the military defence which our
present circumstances call for, it is hardly proper for me now to discuss
that question. If the difficulties and objections which so forcibly press
upon my mind can be obviated, notwithstanding my general doubts of the
efficacy of this measure, I shall vote for the bill on your table.
Mr. VARNUM, of Massachusetts, then rose. He said it was difficult for
him to enter into all the details which the questions of the gentleman
implied; it depended upon the situation of the different parts of the
country, whether the objections of the gentleman from Connecticut (Mr.
TALLMADGE) were applicable. It was not necessary, from the provisions
of the act, to cull this out of the great body of the militia of the
United States. That in Massachusetts it did not exempt from militia duty
in the year 1797. They were only selected and officered, and ordered
to be equipped and in readiness to march at a moment’s warning. They
afterward returned to their ranks and were held to do duty there, in the
same manner as if they had not been detached. If the argument of the
gentleman was correct relative to a detachment, all the militia of the
United States might be undisciplined, as the President had a right to
call out the whole. As to the objection made by the other gentleman from
Connecticut, (Mr. DANA,) there was some difference in the pay proposed
to be allowed by this bill, to the militia, which should compose the
detachment, but it was not much less. The difference was small, from that
allowed by the existing law. Mr. Chairman, the President has told us of
dreadful depredations upon our commerce, and of insults and inroads upon
our territories; that our seamen and fellow-citizens are impressed, and
ill-treated in a most cruel manner. It becomes us, sir, to take some
measure suitable to the occasion, unless we mean to show the world that
we possess a servile and degraded spirit. And, in my opinion, this is
that measure.
Mr. QUINCY, of Massachusetts, said, that the reason given by his
colleague, (Mr. VARNUM,) for passing this bill, “that we ought to show
in the present state of our country, that we do not possess a servile,
degraded spirit,” was a principal reason with him against the bill. He
believed that if, after all the evidence this House had received of
the temper of the people, and of their expectations of efficient, real
measures of defence, such a bill as this was to be the first fruit of a
seven weeks’ deliberation, it would, indeed, indicate that our spirit
was servile and degraded--at least, that such was the spirit of this
House. And, indeed, in fact, its spirit was, in his opinion, far below
the temper and spirit which prevailed in the community. It was, indeed,
very extraordinary that, after all the urgent demands made upon us by
the people and by the President, for various augmentations of our force,
the first step we publicly take should be, not to increase the power
of the Executive arm, but to diminish that which it already possesses.
If this was the real character of this bill, he thought the conclusion
inevitable, that a House which, in such a state of public affairs as
ours, should be guilty of such an act, was actuated by “a servile and
degraded spirit.” And whatever we may think of it ourselves, I have great
fears that both the people and foreign nations will draw that conclusion
concerning us. That this was no increase of Executive power, but a real
diminution of it, was very evident.
The gentleman, my colleague, (Mr. VARNUM,) had stated three reasons
for passing the present and repealing the old law. 1st. The want of
an appropriation for the expense of the detachment. This is a very
good reason for an appropriating act, but it is none at all for an act
repealing the provisions of the old law, and reenacting the same nearly
in the same form. 2d. His second reason was, that the former act was
permanent--this temporary. The former law had been passed in 1803, by
the gentlemen who now constituted the majority in this House. It had
been suffered to sleep for three years, and now, at the very moment
the act is about to be useful, this great constitutional discovery is
made. It is very unlucky that, when the people expect to see us alive
to their protection, we are alive to nothing but theoretic questions
and constitutional difficulties. The third reason for this law was the
new apportionment of the detachment of militia it contemplates. In this
consists the mischief and imbecility of the measure. By the law of 1803,
which this bill proposes to repeal, the President is authorized to call
out a detachment of eighty thousand militia. He may take the whole from
any part of the Union. Wherever the exigency requires, he may there
call for all, or any part, of the eighty thousand. By the present law,
the detachment made is to consist, indeed, of a hundred thousand men;
but this number is to be apportioned upon the States, and whatever is
wanted for actual service is to be collected from seventeen independent
divisions, in a country fifteen hundred miles in length.
The bill was then passed, 79 rising in the affirmative.
WEDNESDAY, January 29.
_Neutral Rights._
Mr. JACKSON called for consideration of the unfinished business of
yesterday, viz: the motion of Mr. SMILIE to discharge the Committee
of Ways and Means from the further consideration of so much of the
President’s Message as relates to the invasion of neutral rights by
some of the belligerent powers. On taking up this business the House
divided--yeas 37; carried.
The motion having been submitted from the Chair, Mr. DAWSON opposed it.
He said the wish of the gentleman from Pennsylvania to bring this subject
under the view of the Committee of the Whole on the state of the Union
might at any time be gratified by going into that committee and moving
any resolution he might see fit, as the Message generally was referred
to the Committee of the Whole on the state of the Union. He believed,
however, that the floor of the House was not the proper place to make
declarations of what is the law of nations. He believed that a volume of
such declarations would be of no avail; it was their duty to act and not
to declare on such subjects; and whenever the gentleman from Pennsylvania
or any other gentleman, would bring forward measures calculated to
prevent an infraction of our neutral rights, they should receive his
support. At present he must be against adopting the resolution.
Mr. SMILIE said he did not expect any opposition to the motion he had
made. If the Committee of Ways and Means should be discharged from the
business, it would consequently come before the Committee of the Whole on
the state of the Union without any motion, as the Message was generally
before that committee.
In reply to the remark that this motion would be treating the Committee
of Ways and Means with disrespect, Mr. SMILIE said, he thought the
ground on which he had placed the business would have removed every idea
of the kind. He did not say the Committee of Ways and Means were not as
competent to the business as any other select or standing committee;
but he had declared from the beginning that in his opinion, in point of
principle, the reference ought to have been made to the Committee of
the Whole. This is the ninth week of the session, and gentlemen charge
us with having done nothing. Do not gentlemen see, from the state of
the Committee of Ways and Means, that this course has become absolutely
necessary? Shall a business of the first importance that can occur
during the session, be neglected on this account? Not only the eyes of
all America, but likewise of all Europe, are looking with anxiety on
the steps which we shall take in this business; for all the maritime
powers of Europe are interested in this great question relative to
neutral rights. Are we, then, in consequence of the deranged situation
of a select committee, to remain with our hands tied up? For myself
I do think, that the interests of our country call upon us to take
immediate steps. I repeat it, that on a similar occasion with this, a
similar course was pursued. Gentlemen will remember, that in the third
Congress, when we before suffered from the misconduct of Great Britain,
certain resolutions which became the subject of discussion originated in
a Committee of the whole House. What, indeed, are we to expect from the
Committee of Ways and Means? Are they in possession of the general sense
of the House on this subject, as a guide in making their report? This is
not the case, as we have had no discussion of the subject; and until it
shall be brought under a view of a Committee of the whole House, it is
impossible to tell in what the opinions of members will centre.
Mr. JACKSON.--I have but a single observation to make in addition to
those which have fallen from the gentleman from Pennsylvania. So far
as relates to myself, it is not my object to discuss in Committee of
the Whole, the abstract questions of the law of nations, but to adopt
measures for the effectual resistance and punishment of the infraction
of those laws, as far as we can. If, according to the course pointed out
by my colleague, any resolution should be submitted on this subject in
Committee of the Whole, it will be objected that the subject is before
a standing committee, and it will be said to be disrespectful to act on
it until they shall have reported. If my colleague, therefore, be of
opinion, that we should adopt any efficient and prompt measures, the
better and speedier way will be for him to join in the motion. I hope the
motion will prevail. In the name of heaven, if we are not disposed to do
any thing, let us tell the people so.
Mr. CROWNISHIELD.--From the beginning I was opposed to referring this
subject to the Committee of Ways and Means. I saw no reason for its
going to a standing committee. Without meaning to cast any censure on
the Committee of Ways and Means, I am in favor of the motion. We have
been in session seven or eight weeks--the reference was made as early as
the 6th of December, and we have yet no report. The question is perhaps
as interesting a one as has been presented since the establishment of a
National Government. What is our situation? Our ships are plundered in
every sea, our seamen are impressed, three thousand of them are in the
service of one nation. We are a neutral nation, and it is not proper
that any belligerent nation should employ them in this manner. Like the
gentleman from Virginia, I am ready to act, I want no report to guide my
decision. I am prepared--not for war measures, but for a non-intercourse
act with Great Britain. I am willing to suspend all intercourse with
Great Britain until she shall give back the ships she has stolen from us,
and the seamen she forcibly detains. I shall not be more ready to take
this step after a report from the Committee of Ways and Means than I am
now. The simple question is, whether we shall abandon trade altogether,
or resist the unjust aggressions made upon it? But it was not my object
in rising, to go any length into the subject; I only rose to express my
opinion in favor of the course pointed out by the motion. The Committee
of Ways and Means is deranged, disorganized; two members are absent, and
the Chairman unfortunately is sick. We have no expectation of a report;
it may not come till the end of the session.
Mr. GREGG.--I rise to express a similar opinion with the gentleman who
has just sat down.
I am in favor of the motion for the reasons which he has assigned and
for another reason; for the sake of consistency. Though the subject be
referred to the Committee of Ways and Means, it is likewise referred to
the Committee of the Whole on the state of the Union. The memorials from
the merchants of New York and Philadelphia have taken this latter course.
This brings the subject before a Committee of the Whole. We are under
the same obligation to take up the business of our constituents as the
Message; and as the business is of the greatest importance, I hope the
whole subject will be referred to a Committee of the Whole.
Mr. BIDWELL.--The gentleman from Pennsylvania has anticipated me in an
idea which I meant to have expressed. As the principal document on this
subject is the Message of the President, I think it proper that that
should be placed with the same committee charged with the memorials of
merchants from different towns. Another reason may be mentioned in favor
of this course of procedure. At the commencement of the session there
was a strong reason for referring the subject to a special committee.
It was a principal object at that time to inquire into the extent and
degree of the injuries received from belligerent nations; as since that
time we have received full information on those points from the Executive
Department, that reason is done away, and there is no necessity for any
investigation by a select committee.
The motion to discharge the Committee of Ways and Means was then agreed
to--yeas 68.
_Non-Intercourse._
Mr. GREGG said, that he considered the insults offered to our Government,
and the injuries done to our citizens by some of the belligerent nations,
to be of such a nature, as to demand the interposition of Government to
obtain redress. It appeared from the memorials and remonstrances of the
merchants of New York, Philadelphia, and other of our seaport towns, now
on our table, as well as from Executive communications, that vessels the
_bona fide_ property of citizens of the United States, have been seized
by their cruisers, and they and their cargoes condemned, contrary to our
rights as a neutral nation, and to what has long been considered as the
law of nations on this subject. Great numbers of our fellow-citizens have
been impressed, and notwithstanding our repeated remonstrances, they are
cruelly retained in bondage, and compelled to act in a service, perhaps
very abhorrent to their feelings, far from their country and their
friends. To these insults and injuries, said Mr. G., we can no longer
submit, unless we are willing to surrender that independence which has
been, and I trust always will be, our pride and our boast. So great are
these injuries and aggressions, and so unremittingly are they persevered
in, that I do not know but that they might be considered as a sufficient
cause on which to ground a declaration of war. That, however, is not my
object. I deprecate war, and will not agree to resort to it, until other
means, which we have in our power, are tried in vain. We do, I think,
possess means, which, if properly used, cannot fail of accomplishing
the object. To these I hope we will now resort, and for the purpose of
bringing them into view, I will submit a resolution to the consideration
of the House, reserving any further observations on the subject, until
the resolution shall be taken up in Committee of the Whole on the state
of the Union, to which I intend moving its reference.
Mr. GREGG then offered the following resolution:
Whereas Great Britain impresses citizens of the United States,
and compels them to serve on board her ships of war, and also
seizes and condemns vessels belonging to citizens of the United
States, and their cargoes, being the _bona fide_ property of
American citizens, not contraband of war, and not proceeding to
places besieged or blockaded, under the pretext of their being
engaged in time of war in a trade with her enemies which was
not allowed in time of peace:
And whereas the Government of the United States has repeatedly
remonstrated to the British Government against these injuries,
and demanded satisfaction therefor, but without effect:
Therefore, _Resolved_, That until equitable and satisfactory
arrangements on these points shall be made between the two
Governments, it is expedient that from and after the ----
day of ---- no goods, wares, or merchandise, of the growth,
product, or manufacture of Great Britain, or of any of the
colonies or dependencies thereof, ought to be imported into the
United States. _Provided_, however, that whenever arrangements
deemed satisfactory by the President of the United States shall
take place, it shall be lawful for him by proclamation to fix a
day on which the prohibition aforesaid shall cease.
The House having agreed to consider this resolution,
Mr. THOMAS said he had seconded the motion of the gentleman from
Pennsylvania, and should give it his decided support. It would however
have suited him better, had it gone still further, and interdicted all
commercial intercourse with that nation, until she should cease to commit
depredations on our commerce, impress our citizens on the high seas
into her service, and abandon the new principles which she had lately
interpolated in the maritime code, and which he considered as unjust as
they were unauthorized by the acknowledged law of nations.
But as unanimity in the Legislature of the nation was desirable at all
times, and particularly so on great national questions, he was disposed,
in order to produce that result on the present occasion, to yield a part
of his own opinion to meet the views of other gentlemen.
The present was an important question, and he hoped the honorable mover
would consent that it should lie a day or two for consideration, and
moved that it be printed.
Mr. GREGG said his wish was to refer the resolution to a Committee of
the Whole on the state of the Union; and made a motion to that effect
which was agreed to without a division, and the resolution ordered to be
printed.
THURSDAY, January 30.
The bill sent from the Senate, entitled “An act to empower George Rapp
and his associates, of the Society of Harmony, to purchase certain
lands,” was read twice and committed to a Committee of the Whole on
Monday next.
Mr. STANFORD, from the committee appointed on the twenty-third instant,
presented a bill for altering the time for holding the circuit court in
the district of North Carolina; which was read twice and committed to a
Committee of the Whole to-morrow.
A memorial of the inhabitants of the town of Salem, in the State of
Massachusetts, signed by a committee, in behalf of the said inhabitants,
was presented to the House and read, setting forth that they have beheld,
with the deepest regret and anxiety, the aggressions committed on the
commerce of the United States, and the consequent violation of neutral
rights, under the new assumed principles and adjudications of the
maritime courts of Great Britain; that they view with equal abhorrence
the impressment of our seamen, the violation of our jurisdiction by
captures at the mouths of our harbors, and the insulting treatment of our
ships on the ocean, by the same nation, not less hostile than the conduct
of other nations, by piratical depredations, and the lawless plunderings
of privateers on our coasts; that, while they ask for no measure but
what justice approves and reason enforces--claiming merely to pursue
a fair commerce, with its ordinary privileges--wishing for peace, for
honorable peace, and to support the independence of their country by the
acquisitions of lawful industry, they pledge their lives and properties
in support of the measures which may be adopted to vindicate the public
rights and redress the public wrongs. Referred to the consideration of a
Committee of the Whole on the state of the Union.
The SPEAKER laid before the House the following letter from the Secretary
of the Navy addressed to the House:
SIR: In obedience to the resolution of the House of
Representatives of the 27th instant, directing the Secretary
of the Navy “to lay before the House a report on the condition
of the frigates, and other public armed vessels, belonging to
the United States, distinguishing the frigates fit for actual
service; distinguishing such as require repair, and the sum
necessary for repairing each; and distinguishing also such
as it may be the interest of the United States to dispose of
rather than repair,” I have the honor to state--
That the frigate Constitution is now in a state of thorough
repair, and in all respects prepared for service.
That the frigate Chesapeake has lately been repaired and is fit
for service.
That the frigates Adams, Essex, and John Adams, are also fit
for service.
That the brigs Syren, Hornet, Argus, and Vixen, the schooners
Nautilus and Enterprise, the bombs Spitfire and Vengeance, and
all the gunboats are fit for service.
That the frigates President, United States, Congress,
Constellation, New York, and Boston, required to be repaired;
but it is utterly impossible to form an accurate estimate of
the “sum necessary for repairing each.”
I know of no vessel belonging to the navy, which I consider
it would be “the interest of the United States to dispose of,
rather than repair.”
On the motion of Mr. J. Randolph, the first and third sections of the
bill to repeal so much of an act as authorizes the evidences of the
public debt to be received in payment for public lands, and for other
purposes, was referred to a Committee of the whole House.
The discussion which ensued on the details of this bill occupied nearly
the whole of the residue of the day.
The committee having reported the bill, with sundry amendments, it was
ordered to a third reading to-morrow.
_Neutral Rights._
Mr. J. RANDOLPH said it would be recollected that, very early in the
session, so much of the Message of the President of the United States as
relates to the invasion of neutral rights by belligerent powers, had been
referred to the Committee of Ways and Means. It would also be recollected
that another Message on the same subject, or on one connected with it,
had been referred to the same Committee of Ways and Means. I understand,
said Mr. R. (for my indisposition has not permitted me for some days
past to attend to the duties of my seat) that a motion has prevailed
to discharge the Committee of Ways and Means from the consideration of
that subject. Inasmuch as this discharge may have been effected under
an impression that the committee, have been delinquent in executing the
duty devolved upon them, I feel it my duty before I surrender the papers
connected with this subject, to give some account of the proceedings of
the committee. On the eleventh of December the committee instructed their
Chairman to write a letter to the Secretary of State, which I will read.
Mr. R. here read the letter as follows:
COMMITTEE ROOM, _Dec. 11, 1806_.
SIR: The Committee of Ways and Means have instructed me to
request you will cause to be laid before them such information,
on the subject of the enclosed resolution, as the Department of
State can furnish.
The peculiar objects of our research are--
1. What new principles, or constructions, of the law of nations
have been adopted by the belligerent powers of Europe, to the
prejudice of neutral rights?
2. The Government asserting those principles and constructions?
3. The extent to which the commerce of the United States has
been thereby injured?
I am, with very great respect, sir, yours,
JOHN RANDOLPH.
The SECRETARY OF STATE.
On Saturday night the 25th instant, the Committee of Ways and Means
received an answer to this letter, which I will deliver to the Clerk, in
order that it may go to the new committee, to which this business has
been referred. It is unnecessary for me to add any thing more. The House
must be sensible that while the Committee of Ways and Means were in the
dark they could not proceed in the discharge of the duties assigned them,
and that after receiving information from the Secretary of State so late
in the day, it was impossible for them to have made a report by this
day; and if I am not mistaken, the motion to discharge the Committee of
Ways and Means was made before the answer of the Secretary of State was
received.
The Clerk accordingly read the letter of the Secretary of State, as
follows:
DEPARTMENT OF STATE, _Jan. 25, 1806_.
The Secretary of State presents his respects to Mr. Randolph,
and has the honor to transmit him a copy of a report this
day made to the President of the United States, respecting
interpolations by foreign powers, of new and injurious
principles in the law of nations. This report, which the
communications made by the President to Congress, particularly
that of the 17th instant, will, it is hoped, afford the
information requested, for the Committee of Ways and Means, by
Mr. Randolph’s letter of the 11th ultimo.
When, on motion of Mr. J. RANDOLPH, the papers laid by him on the table
were referred to a Committee of the Whole on the state of the Union.
FRIDAY, January 31.
Another member, to wit, WILLIAM BLACKLEDGE, from North Carolina,
appeared, produced his credentials, was qualified, and took his seat in
the House.
_Bridge across the Potomac._
The House then again resolved itself into a Committee of the Whole on the
resolution in favor of authorizing the erection of a bridge across the
Potomac.
Mr. LEWIS.--Mr. Chairman: There is but one point to which, in my
opinion, the attention of this committee ought to be directed: Will
the erection of the contemplated bridge injure the navigation of the
river Potomac? This is the only question applicable to the subject,
and the only pivot upon which it ought to turn. Let us, Mr. Chairman,
examine the objections and reasoning of the anti-memorialists upon this
point. They say in their memorial that “they consider their natural and
political rights will be infringed by the adoption of this measure, as
the navigation of the river will be injured and obstructed thereby;
that from the meeting of the stream and tide-water, at the place where
the bridge is contemplated, a tendency will be produced in the impeded
stream-water to deposit the earthy particles with which it is charged in
time of freshes, and by which they apprehend the present, entire, main
and deep channel may be divided into many small and narrow passages, to
the great injury of the navigation.” This, sir, is the bare assertion
of the counter-memorialists; they have not deigned to state one single
fact, or adduce the smallest proof in support of a result which they
have taken for granted will be inevitable. Although the proof rests
upon the opponents to this measure, and not upon its friends, yet I am
willing and prepared to prove, by the best evidence the nature of the
case will admit, that the navigation of the Potomac, instead of being
injured, will be greatly benefited by the erection of this bridge. Sir,
the evidence I shall offer is drawn from experience. It is known that
in Europe, as well as in this country, piers have been sunk for the
express purpose of deepening the channel, and improving the navigation
of rivers, and if this experiment has succeeded in all other countries
and rivers, surely it will not fail in the Potomac. It is not to be
believed that the Potomac is unlike every other river in the world. But,
sir, if we had not the aid of experience before us, common sense and
common reason would revolt at the idea of injuring the navigation in the
manner stated by the counter-memorialists. If you oblige vessels of all
descriptions to pass through your draw and of course pursue the same
channel, will it not have a tendency to deepen and clean the channel,
by agitating the sediment which may have settled there, and which will
by that means be swept away by the current? and instead of a number
of small channels, will it not have the opposite effect of improving
and deepening the only main channel? Surely this must be the effect.
But, Mr. Chairman, whilst I am unwilling to believe that the erection
of this bridge can in any manner whatever injure the navigation of the
Potomac; yet I will candidly admit that the vessels passing to and from
Georgetown will experience some little inconvenience at the draw; but
that inconvenience will be so very trifling that it will be entirely
lost in a comparison with the great general good which will result to
the community. Having proved, as I trust, satisfactorily, that the
navigation of the Potomac cannot possibly be injured by the adoption
of this measure, let us now examine the inconvenience to which vessels
passing the draw will be subjected, for this appears now to be the only
remaining ground of investigation. We have been told by gentlemen on
this floor well acquainted with the building of bridges and of their
effects, that little or no detention is experienced in passing the draws.
That it frequently happens that vessels pass through without lowering
a sail or being detained a single instant when they have a fair wind,
and that at no time is it necessary to detain them longer than from
five to fifteen minutes. If this information is correct, (and we cannot
possibly doubt it,) where, let me ask, is the very great injury to the
very few vessels that will have to pass this draw? When I say very few,
Mr. Chairman, I have reference to the statement made the other day by
my honorable colleague, the chairman of the committee, whose report is
now the subject of discussion. He then told us that his statement was
taken from absolute entries made at the collector’s office at Georgetown
for the last seven years, and in that time only twenty-one ships, six
brigs, one hundred and thirty-two schooners, and fifty-two sloops had
been entered there, making in the whole two hundred and eleven vessels
of all descriptions. My colleague at that time omitted to mention, or
was not apprised of the fact, that of the vessels entered at Georgetown,
a very considerable proportion never went there, but were destined for,
and actually loaded at the Eastern Branch. It is very well known that
within the last seven years a number of large vessels were loaded at the
Eastern Branch by Mr. Barry alone, who was at that time engaged in making
large shipments of flour and biscuit to the West Indies; yet all these
vessels, as well as a great number employed in removing from Philadelphia
the furniture of Congress, of the President, and of the public officers,
together with those employed in bringing stores, &c., for the navy yard
on the Eastern Branch, were all entered at Georgetown, that being the
only port of entry for Georgetown and the city of Washington, thereby
giving to Georgetown an appearance of commerce which she is not really
entitled to. I have ascertained that some years ago several foreign
vessels resorted to the port of Georgetown to carry away the tobacco of
that town and Bladensburg, and that the ships used to lie in the Eastern
Branch to obtain their cargo from both places. That this trade has
declined cannot be denied, for it is an incontrovertible fact that the
only ship destined for Georgetown last year, called the William Murdock,
Captain Tom, was loaded at Barry’s wharf, on the Eastern Branch, because
there was not sufficient water over the bar below Georgetown to admit
her passage to and from that place. Now, sir, from the whole number of
vessels of all descriptions entered at Georgetown for the last seven
years, we may fairly deduct one-fourth for those which never went there;
there will then remain 158 as having actually passed up the river to
that place during that time; which, divided by seven, will be something
less than twenty-three vessels in each year, and not quite one for each
fortnight. Thus, then, sir, this mighty obstacle--these great delays by
a drawbridge--after investigation become very inconsiderable. Indeed,
the first is proven to be nothing, and the last too trifling to deserve
serious consideration. But, Mr. Chairman, in order to remove every
objection, or even doubt, which can possibly exist with any part of the
committee, I am willing to insert a clause in the bill obliging the
Bridge Company to compensate for any loss by detention at the draw.
We have been told by the counter-memorialists, and it has been reiterated
here, “that natural advantages ought not to be injured by artificial
means.” Upon this subject, Mr. Chairman, the people of Georgetown ought
to have been silent; they are not aware of a retort which this objection
will force upon them. Will they recollect, sir, that to artificial means
alone they are indebted for the greatest part of their commerce? Will
they recollect that from artificial means alone the towns of Baltimore
and Alexandria have been deprived of their natural advantages to the
exclusive benefit of Georgetown? Do they not know that the improvement of
the Potomac above them has diverted from its natural course a commerce
which belonged to others and which now enriches them? And will they
permit me to remind them that even to the erection of a bridge they owe
no inconsiderable share of their commerce? Yes, sir, I will remind the
people of Georgetown of advantages from artificial means which they ought
not to have forgotten, because to them, in a great measure, they owe
their present commercial standing. The bridge below the Little Falls,
at the head of the navigation of the Potomac, has given to Georgetown a
considerable quantity of produce from Virginia which must otherwise have
gone to Alexandria. I am very far from objecting to the means by which
the importance of Georgetown has been acquired. I was pleased with the
erection of a bridge at the Little Falls, because it was a convenience
generally, and particularly so to that part of the country from which I
come, and from the same principle I should be glad to see a number of
other bridges erected, both above and below the Falls. I have always
thought, and still think, there ought to be a bridge at Georgetown, and
if the people of that place are of the same opinion, and will propose
it, I will promise to vote for it. Is it necessary already to remind the
people of Georgetown that for their exclusive benefit one arm of the
river Potomac has been entirely closed, by authorizing a dam from Mason’s
Island to the Virginia shore, which gives to them, in some measure, a
monopoly of the flour which comes down the Potomac? and are we now to
be told by the same people that we possess no constitutional right to
authorize a bridge across the Potomac for the public good, even with a
free passage to vessels of all descriptions, and that even if we possess
the right, it would be a wanton and cruel exercise of it? The erection
of the dam will certainly prevent flour boats from going to Alexandria
at particular seasons of the year, when high winds are frequent, as they
will be obliged to go a considerable distance round Mason’s Island,
exposed to a wide and unprotected sheet of water, which will subject them
to considerable danger, even when the wind is moderate; but before the
erection of this dam, the boats could go down to Alexandria at almost any
season, and with almost any wind, as they could, and did, always keep
close to the Virginia shore, and covered by its banks were perfectly
secure. This measure, as well as the erection of the bridge at the Falls,
was evidently injurious to the interests of Alexandria. Yet, sir, had we
any complaints from that quarter? Were our rights questioned by them,
and our motives censured? Were we told by them that “no place should
calculate on artificial advantages, which cannot be afforded without
depriving other places of their natural advantages?” No, sir, they were
silent; not even a murmur escaped them; they had no wish to deprive
their neighbors of any advantages they could derive from “artificial
means,” although their interests should in some measure be affected by
it; they felt none of those jealousies which appear now to influence
their neighbors. It is well known that at the last session of Congress I
was in favor of the causeway from Mason’s Island to the Virginia shore.
I did not believe at that time it could do any injury to the public,
and as the people of Georgetown supposed it would benefit them by
reclaiming a channel considerably injured by natural causes, I could have
no reasonable objection to the experiment, and of course gave to it my
support.
Mr. QUINCY supported; and Messrs. DAWSON, G. W. CAMPBELL, MAGRUDER,
VARNUM, and MASTERS, opposed the resolution; when the question was taken,
and the resolution carried--yeas 60, nays 51. The committee immediately
rose and reported their agreement to the resolution. The House took the
report into consideration. On concurring in the resolution the yeas and
nays were called; and were--yeas 61, nays 49, as follows:
YEAS.--Joseph Barker, Burwell Bassett, George M. Bedinger,
Silas Betton, William Butler, Levi Casey, Martin Chittenden,
John Claiborne, Christopher Clark, Frederick Conrad, Orchard
Cook, Leonard Covington, Jacob Crowninshield, Ezra Darby,
Elias Earle, Ebenezer Elmer, William Ely, James Fisk, James
M. Garnett, Peterson Goodwyn, Silas Halsey, Seth Hastings,
Wm. Helmes, David Hough, Walter Jones, James Kelly, Thomas
Kenan, John Lambert, Joseph Lewis, jun., Henry W. Livingston,
Matthew Lyon, David Meriwether, Nicholas R. Moore, Thomas
Moore, Jonathan O. Mosely, Thos. Newton, jr., John Pugh, Josiah
Quincy, Thomas M. Randolph, Jacob Richards, John Russell, Peter
Sailly, Martin G. Schuneman, Henry Southard, Richard Stanford,
Joseph Stanton, William Stedman, Lewis B. Sturges, Samuel
Taggart, Benjamin Tallmadge, David Thomas, Philip R. Thompson,
Uri Tracy, Abram Trigg, Killian K. Van Rensselaer, Peleg
Wadsworth, Eliphalet Wickes, Nathan Williams, Alexander Wilson,
Joseph Winston, and Thomas Wynns.
NAYS.--Willis Alston, junior, Isaac Anderson, John Archer,
David Bard, Barnabas Bidwell, John Blake, jr., Thomas Blount,
Robert Brown, Joseph Bryan, George W. Campbell, John Campbell,
John Chandler, Samuel W. Dana, John Davenport, jun., John
Dawson, Peter Early, James Elliot, John Fowler, Charles
Goldsborough, Edwin Gray, Andrew Gregg, Isaiah L. Green, John
Hamilton, James Holland, David Holmes, Patrick Magruder, Robert
Marion, Josiah Masters, Jeremiah Morrow, John Morrow, Jeremiah
Nelson, Roger Nelson, Gideon Olin, Timothy Pitkin, jun., John
Rea of Pennsylvania, John Rhea of Tennessee, Thomas Sanford,
James Sloan, John Cotton Smith, John Smith, O’Brien Smith,
Samuel Smith, Samuel Tenny, Joseph B. Varnum, Matthew Walton,
John Whitehill, Robert Whitehill, David R. Williams, and
Marmaduke Williams.
_Ordered_, That a bill, or bills, be brought in, pursuant to the
foregoing resolution; and that Mr. THOMPSON of Virginia, Mr. CAMPBELL of
Maryland, Mr. LEWIS, Mr. MAGRUDER, and Mr. BUTLER, do prepare and bring
in the same.
MONDAY, February 3.
A memorial of the merchants of the town of Boston, in the State of
Massachusetts, was presented to the House and read, stating that they
have witnessed, with mingled feelings of indignation towards the
perpetrators, and of commiseration for their unfortunate countrymen,
the insults and barbarities which the commerce of these States has
sustained from the cruisers of France and Spain; but that it is their
object, in the present memorial, to confine their animadversions to
the more alarming, because more numerous and extensive detentions and
condemnations of American vessels, by Great Britain, and to advert to the
principles recently avowed and adopted by her courts, relative to neutral
trade in articles of colonial produce: principles which, if admitted,
or practised upon in all the latitude which may fairly be inferred to
be intended, would be destructive of the navigation, and radically
impair the most lucrative commerce of our country; and praying that such
measures may be adopted, by negotiation, or otherwise, in the wisdom of
the Government, as will tend to disembarrass our commerce, assert our
rights, and support the dignity of the United States.--Referred to the
Committee of the Whole on the state of the Union.
_Intercourse with Great Britain._
Mr. J. RANDOLPH said the House would recollect better than he did, for
he was not present at the time, the very important resolution referred
on the motion of the gentleman from Pennsylvania, (Mr. GREGG,) whom
he saw in his place, to the Committee of the Whole on the state of
the Union. It was no part of his purpose at this time to discuss the
merits of that resolution, and it was still further from his purpose
to throw any impediment, or create any delay in bringing forward that
discussion; the more so, as he considered the whole country south of the
seat of Government, and more particularly that part of the country in
which he resided, decidedly interested in a speedy and prompt reception
or rejection of the proposition. Indeed, such was his opinion of the
necessity of its being speedily acted upon, that as soon as he saw the
resolution which had been offered, which was not until Friday, when it
was laid on their table, the first suggestion of his mind was to move the
going immediately into a Committee of the Whole on it; as those gentlemen
with whom he had the honor of holding personal and political intercourse
would testify. But a more mature reflection had convinced him that before
the resolution could receive that ultimate decision which he trusted it
would receive, the House stood in need of material information, which,
however it might be in the possession of this or that individual, was
not possessed by the body of the House. His object in addressing the
House was to obtain this information from the proper authority, from
the Head of a Department, which was the only way in which information
of a satisfactory nature, such as ought to influence the decision of
the House, ought to be obtained. Mr. R. then submitted the following
resolution:
_Resolved_, That the Secretary of the Treasury be directed to
lay before this House a statement of the exports and imports
of the United States, to and from Great Britain and Ireland,
and the American colonies of the same, for the two last years,
distinguishing the colonial trade from that of the mother
country, and specifying the various articles of export and
import, with the amount of duties payable on the latter.
Mr. SMILIE expressed himself in favor of the resolution, and observed
that the species of information called for, had not been received by the
House later than 1803.
Mr. CROWNINSHIELD was of opinion that it would be best to extend the
resolution so as to embrace the British Provinces of Nova Scotia and New
Brunswick, and the provinces beyond the Cape of Good Hope.
A conversation of some length ensued between Messrs. CROWNINSHIELD,
BIDWELL, and ALSTON, on the one side; and Messrs. J. RANDOLPH and J.
CLAY, on the other, on amending the resolution. The former gentlemen
were for amending the resolution so as to embrace a period of peace as
well as war, and to obtain information from “all the dependencies of
Great Britain,” which the latter gentlemen opposed on various grounds,
one of which was, that if this additional information were desirable, it
could be obtained by a distinct resolution.
On Mr. CROWNINSHIELD’s motion to amend the resolution, so as to extend it
to “British dependencies,” generally, the House divided--ayes 43, noes 67.
Mr. NICHOLSON suggested the propriety of adding the following words to
the resolution, in which the mover acquiescing, they were incorporated
into it:
“And also a statement showing in detail the quantity and value
of the like articles of import brought into the United States,
from other nations respectively, with the rate and amount of
duty thereon.”
The resolution, thus modified, was agreed to without a division.
Mr. CROWNINSHIELD then moved the following resolution. He said, in
substance it was the same with the amendment which he had proposed to the
resolution of the gentleman from Virginia:
_Resolved_, That the Secretary of the Treasury be directed to
lay before this House a statement of the amount of the exports
and imports to and from the British dependencies, other than
those of America, for the last two years.
This resolution was likewise agreed to without a division.
WEDNESDAY, February 5.
_Non-Intercourse with Great Britain._
Mr. CLAY.--The gentleman from Massachusetts having laid on the table a
resolution arising out of the present state of our foreign relations,
and as that subject is one on which I think there cannot be too much
deliberation before we act, or of which too many views cannot be taken, I
will take the liberty of submitting some resolutions which I have drawn
up, and to which I ask the attention of the House. In the present state
of our relations with foreign powers, it appears to me that a system of
commercial regulations, mild and yet firm, one which can be carried into
permanent effect without much inconvenience to ourselves, will be more
effectual than any temporary expedients. If we are disposed to adopt
such a system, it will be looked upon by foreign nations as one in which
we are likely to persevere. They will consider its probable effects in
time of peace upon their colonial possessions, and they may be induced
to enter into permanent regulations opening to us a trade with their
colonies. The distinction attempted to be made between a war trade and
an accustomed trade will be destroyed, and with it the only pretext upon
which are founded the vexations and depredations committed on American
commerce. The present is a favorable moment for the adoption of such
a plan. At this time the ports of the belligerent powers are open, and
the effect of the measures, which I am about to propose, will not have
an immediate distressing effect upon the West Indies. If these measures
are taken, the powers of Europe will find that, unless they admit our
ships into their colonial ports in time of peace, the trade between
their colonies and us will be cut off by a system which will be but
slightly injurious to ourselves. I think, I repeat it, that a permanent
system, mild but firm, will be more likely to induce Great Britain, in
particular, to recede from the unjust pretensions she has set up, than
more violent and extreme measures, which, from their very nature and
their injurious consequences to ourselves, must be necessarily temporary.
Mr. C. concluded, with offering the following resolutions:
_Resolved_, That, after the ---- day of ---- next, no trade or
intercourse in any ship or vessel owned in whole or in part
by any citizen or subject of any foreign Government, shall be
permitted between the United States or their Territories, and
any port or place in the colonies or dominions of any European
power, which trade or intercourse is not permanently permitted
by the laws or regulations of such European power, to be
carried on in ships or vessels of the United States.
_Resolved_, That, after the ---- day of ---- aforesaid, no
goods, wares, or merchandise, shall be exported from the United
States or their Territories, in any ship or vessel owned in
whole or in part by any citizen or subject of any foreign
Government, to any port or place in the colonies or dominions
of any European power, the importation of which into such
port or place, in ships or vessels of the United States, is
not permanently permitted by the laws or regulations of such
European power.
_Resolved_, That, after the ---- day of ---- aforesaid, no
goods, wares, or merchandise, shall be imported into the United
States or their Territories, in any ship or vessel owned in
whole or in part by any citizen or subject of any foreign
Government, from any port or place in the colonies or dominions
of any European power, the exportation of which from such
port or place, in ships or vessels of the United States, is
not permanently permitted by the laws or regulations of such
European power.
_Resolved_, That, after the ---- day of ---- aforesaid, no
goods, wares, or merchandise, shall be imported into the United
States, in any ship or vessel owned in whole or in part by
any citizen or subject of any foreign Government, excepting
articles of the growth, produce, or manufacture of the
colonies or dominions of such foreign Government, unless such
importation be expressly permitted by treaty between the United
States and such foreign Government, or unless during a war in
which the United States may be a party.
The House immediately considered these resolutions, and referred them to
a Committee of the Whole on the state of the Union.
_Importation of Slaves._
The House again resolved itself into a Committee of the Whole, on the
bill imposing a duty of ten dollars on every slave imported into the
United States.
Mr. JACKSON offered a new section, the object of which was to prohibit
the importation into the United States of all slaves, brought either from
abroad or from any State, except, in the latter case, by citizens of the
United States removing to a Territory, to settle therein.
Mr. JACKSON viewed this provision as necessary, in consequence of a legal
construction given to an act of the last session, which allowed the
importation of slaves from abroad into Louisiana.
This motion was opposed by Messrs. ALSTON, ELY, MORROW, SPALDING, and
SLOAN, who either viewed it as inexpedient in itself, or as proper to be
introduced into a distinct bill.
Mr. JACKSON said, as it was the wish of his friends, he would withdraw
the motion, and offer it on another occasion.
No farther amendments having been offered the committee rose, and
reported their agreement to the bill.
The House immediately considered the report.
The amendment limiting the imposition of the tax to the first day of
January, 1808, was disagreed to; and the other amendments agreed to.
Mr. JACKSON inquired what the effects would be of the forfeiture of the
cargo, in case slaves were smuggled into the United States? Would they
be kept in the service of the United States? He did not wish to have any
thing to do with them.
Mr. JOHN C. SMITH said, he had voted for the resolution; but the
defects in the details of the bill were so glaring, that he hoped it
would be referred to a select committee, that it might be so modified
as to cure these defects; or, that in case it were found insusceptible
of modification, it might be rejected. Mr. S. accordingly moved the
recommitment of the bill to a select committee.
Mr. JACKSON advocated this motion, and remarked that the proviso of
the bill that declared the duty should not be construed as giving a
sanction to the importation of slaves, offered an additional reason for
either rejecting or recommitting it. How could this language be used
with propriety in a law, when the constitution, the highest authority,
authorized the trade?
Mr. QUINCY spoke to the like effect, and further inquired, whether it was
the intention of gentlemen to apply the provisions of the bill to slaves
navigating the ships of the United States.
Messrs. HASTINGS and SLOAN defended the provisions of the bill as
perfectly correct. They observed that slaves were considered as property,
as merchandise, and could only, therefore, in the bill be treated as such.
The motion to recommit was lost--ayes 39, noes 61.
Mr. CROWNINSHIELD spoke against the bill, and moved its postponement to
an indefinite day.
Messrs. JOHN C. SMITH, TAGGART, and RHEA of Tennessee, supported; and
Messrs. SLOAN, ELMER, and SMILIE, opposed the motion; when the yeas and
nays were called on it, and were--yeas 42, nays 69, as follows:
YEAS.--Willis Alston, jr., George M. Bedinger, Silas Betton,
Phanuel Bishop, William Blackledge, Joseph Bryan, William
Butler, Levi Casey, Martin Chittenden, Christopher Clark,
Matthew Clay, Frederick Conrad, Jacob Crowninshield, Samuel
W. Dana, John Davenport, junior, John Dawson, Elias Earle,
Peter Early, James Elliot, James M. Garnett, Edwin Gray, James
Holland, John G. Jackson, Walter Jones, Thomas Kenan, Robert
Marion, Josiah Masters, William McCreery, David Meriwether,
Thomas Moore, Timothy Pitkin, jr., Thomas M. Randolph, John
Rhea of Tennessee, Thomas Sanford, O’Brien Smith, Thomas
Spalding, Samuel Taggart, Samuel Tenney, David Thomas, Thomas
W. Thompson, David R. Williams, and Thomas Wynns.
NAYS.--Isaac Anderson, John Archer, Joseph Barker, John
Blake, jr., Thomas Blount, Robert Brown, John Chandler, John
Claiborne, Joseph Clay, Leonard Covington, Richard Cutts, Ezra
Darby, Ebenezer Elmer, William Ely, John W. Eppes, William
Findlay, James Fisk, John Fowler, Peterson Goodwyn, Andrew
Gregg, Isaiah L. Green, Silas Halsey, John Hamilton, Seth
Hastings, David Holmes, David Hough, Nehemiah Knight, John
Lambert, Michael Leib, Joseph Lewis, junior, Matthew Lyon,
Patrick Magruder, Nicholas R. Moore, Jeremiah Morrow, Jonathan
O. Mosely, Jeremiah Nelson, Thomas Newton, junior, Joseph H.
Nicholson, Gideon Olin, John Pugh, John Rea of Pennsylvania,
Jacob Richards, John Russell, Peter Sailly, Thomas Sammons,
Martin G. Schuneman, Ebenezer Seaver, James Sloan, John Smilie,
John Cotton Smith, John Smith, Samuel Smith, Henry Southard,
Richard Stanford, Joseph Stanton, Lewis B. Sturges, Philip R.
Thompson, Uri Tracy, Abram Trigg, Philip Van Cortlandt, Joseph
B. Varnum, Peleg Wadsworth, John Whitehill, Robert Whitehill,
Eliphalet Wickes, Marmaduke Williams, Alexander Wilson, and
John Winston.
Mr. JACKSON moved to strike out the proviso of the bill, which motion
was disagreed to; when the bill was ordered to be engrossed for a third
reading to-morrow--ayes 69.
THURSDAY, February 6.
Another member, to wit, from South Carolina, RICHARD WYNN, appeared,
produced his credentials, was qualified, and took his seat in the House.
FRIDAY, February 7.
_Non-Importation of Slaves, into Territories._[32]
On motion of Mr. D. R. WILLIAMS the House came to the following
resolution:
_Resolved_, That a committee be appointed to inquire whether
any, and if any, what additional provisions are necessary to
prevent the importation of slaves into the Territories of the
United States.
A committee of five members were appointed.
_Removal of Federal Judges on the Address of Congress._
AMENDMENT TO THE CONSTITUTION.
Mr. J. RANDOLPH, agreeably to notice given by him yesterday, made the
following motion:
_Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled, two-thirds
of both Houses concurring_, That the following article
be submitted to the Legislatures of the several States,
which, when ratified and confirmed by the Legislatures of
three-fourths of the said States, shall be valid and binding as
a part of the Constitution of the United States:
The Judges of the Supreme, and all other courts of the United
States, shall be removed from office by the President, on the
joint address of both Houses of Congress requesting the same.
The House having agreed to consider the motion, it was, at the instance
of Mr. J. RANDOLPH, referred to a Committee of the Whole on the state of
the Union.
Mr. J. RANDOLPH gave notice that he should call up this motion on
Thursday.
_Naval Peace Establishment._
The House went into a Committee of the Whole on the bill relative to a
Naval Peace Establishment.
Mr. GREGG explained at some length the provisions of the bill. The bill,
he said, corresponded with the intimations of the President relative to
giving an opening to the promotion of several officers who had greatly
distinguished themselves in the Mediterranean service. He stated that
the bill contemplated giving the President power to keep in service
nine hundred and twenty-five able and ordinary seamen and boys, making
two-thirds of the full complement of six frigates, two of forty-four
guns, two of thirty-six, and two of thirty-two; that it contemplated the
increasing the number of captains from ten to thirteen; the creation of
nine masters-commandant, and the increase of lieutenants from thirty-six
to seventy-two. This arrangement was proposed, in order to give to the
young officers in the navy that rank and reward merited by them, and to
enable the doing this, without interfering with the rules of promotion
usual in the naval service.
Mr. LEIB spoke against the feature of the bill that augmented the number
of officers. It appeared to him, indeed, a pension bill, and to make
large allowances without services rendered. It also contemplated the
keeping six frigates in service, and provides for them thirteen captains,
nine masters-commandant, and seventy-two lieutenants. He did not consider
the Treasury in such a state of overflow as to justify this liberality.
Mr. GREGG said the gentleman had misunderstood his remarks as well as the
nature of the bill, which, so far from directing six frigates to be kept
in actual service, repealed that part of a former law which contained
this provision.
No motion having been made to amend the bill, the Chairman proceeded in
the reading of the remaining sections; when
Mr. GOLDSBOROUGH expressed his opinion that the bill required
considerable amendment, and that he had understood from the Secretary
of the Navy that its provisions were not consonant to that system which
he considered the most conducive to the public service. With a view to
obtain fuller information relative to the subject, he moved that the
committee should rise and ask leave to sit again.
This motion obtained, without opposition, when the committee rose and
received leave to sit again.
MONDAY, February 10.
Another member, to wit, DUNCAN MCFARLAND, from North Carolina, appeared,
produced his credentials, was qualified, and took his seat in the House.
_Importations from Great Britain._
Mr. NICHOLSON said he wished to lay on the table a resolution relative to
the subsisting differences between the United States and Great Britain,
on which several resolutions had already been offered.
Mr. N. said he had seen two propositions, neither of which he liked. One
was a resolution offered by a gentleman from Pennsylvania, (Mr. GREGG.)
When he considered that our importations from Great Britain amounted
annually to about twenty-five millions of dollars, and that the whole
of this trade was, according to the proposition of the gentleman, to be
prohibited; and it was also considered that the average amount of duties
on articles imported from Great Britain was twenty per cent., it would at
once be seen that the measure would affect the revenue to the amount of
five millions annually.
Nor did it, in offering these resolutions, appear to have been taken into
view, that while the measure had a very material effect on the revenue,
it had likewise an immediate effect on the habits of our citizens who
consumed goods imported from Britain. With regard to the single article
of cotton, its prohibition would operate in three different ways. In the
first place, the wants of our people will be increased in proportion to
the prohibition of cotton goods; in the second place, the revenue would
be affected by it; and in the last place, it was extremely probable that
the foreign demand for the raw material we furnish would be considerably
diminished. A single fact would evince this with some force. In the
year 1791, there were exported to Liverpool 64 bales of cotton; and in
the first nine months of 1805 there had been exported to the same place
93,000 bales. This would show what the effect might be of the prohibition
of the importation of articles manufactured from cotton in Great Britain
on the demand for the raw material we furnish.
Mr. N. then submitted the following resolution:
_Resolved_, That, from and after the ---- day of ---- next,
the following articles, being of the growth, or manufactures
of Great Britain or Ireland, or of any of the colonies or
dependencies of Great Britain, ought to be prohibited by
law from being imported into the United States, or into the
territories thereof, viz:
All articles of which leather is the material of chief value;
all articles of which tin or brass is the material of chief
value, tin in sheets excepted; all articles of which hemp or
flax is the material of chief value; all articles of which silk
is the material of chief value; woollen cloths, whose invoice
prices shall exceed ----; woollen hosiery of all kinds; window
glass, and all other manufactures of glass; silver and plated
wares; paper of every description; nails and spikes; hats;
clothing ready made; millinery of all kinds; playing cards;
beer, ale, and porter; and pictures and prints.
This resolution was immediately considered by the House, and referred to
a Committee of the Whole on the state of the Union, and ordered to be
printed.
_West India Trade._
Mr. CROWNINSHIELD said, the gentleman from Maryland (Mr. NICHOLSON)
had offered several resolutions prohibiting the importation of
sundry articles of British manufactures into the United States. Mr.
C. observed that he had another project which he wished to submit,
relative to our trade with the British West Indies. He did not mean at
this time to discuss the subject, either so far as it was connected
with the propositions of the gentleman from Maryland, or with that of
the gentleman from Pennsylvania, which went to a much greater extent.
But with regard to one idea expressed by the gentleman from Maryland,
he thought it proper to say a few words. That gentleman had observed
that the proposition offered by the gentleman from Pennsylvania would
affect the revenue to the amount of five millions of dollars; and
therefore impressed upon the House the duty of being extremely cautious
in taking such a step. Mr. C. said he did not believe the adoption of
that proposition would affect the revenue to any such extent. He did
not believe it would affect the revenue to the amount of a million of
dollars. Because, although we should prohibit the importation of British
goods, we could get most of the same articles from other countries. We
get salt from Cadiz, and Lisbon, and from several other places. Rum could
be got from every island in the West Indies; and if we should not be
able to get a sufficient quantity to supply our wants, we could import
from France brandies, which will be a good substitute. We may also get
woollens from the continent of Europe, and every article on the list,
perhaps at higher prices. It was not, however, Mr. C. said, his object at
this time to discuss the merits of either proposition. His chief object
was to offer his own project, which related to the West Indies. Every
one knows that those islands are dependent on the United States for the
necessaries of life; that they cannot get many important articles they
absolutely want from other countries. Every one knows that for fish,
beef, pork, and lumber, they are dependent on us, inasmuch as they
cannot get them elsewhere. How is the trade carried on? Great Britain has
adopted a curious commercial principle, bottomed on the principle of her
navigation act; which in time of peace almost amounts to a prohibition
to introduce into her islands any articles of ours; and which in time
of war opens the ports of a few of her islands for the introduction of
particular articles for three or six months. Mr. C. said he wished to
see this trade permanently open to the citizens of the United States.
He thought it probable this might be done by the adoption of his plan.
The gentleman from Pennsylvania had offered a proposition which was
calculated to meet in part the practices of Great Britain. The first
resolution related to trading to the West Indies in foreign vessels, and
not in vessels of the United States. Every one knew that in the trade
between the United States and the West Indies there were either none, or
very few foreign vessels.
Mr. C. then offered the following resolution:
_Resolved_, That, from and after the ---- day of ---- next,
no goods, wares, or merchandise, shall be exported from, or
imported into, the United States or the territories thereof,
in any ship or vessel whatever, to or from any European
colonies or settlements, situated on the eastern side of the
continent of America, or its adjacent seas, northward of
the Equator, unless the importation of all articles of the
growth, product, or manufacture of the United States and their
territories, in American bottoms, is at all times admitted into
the said colonies, or settlements, and unless the exportation
of the productions of the said colonies, or settlements, is
permanently allowed in American bottoms from the same to the
United States, and the territories thereof.
WEDNESDAY, February 12.
_Limits of Georgia._
Mr. SPALDING, from the committee to whom was referred, on the thirteenth
ultimo, the memorial of the Legislature of the State of Georgia, made a
report thereon, which was read, as follows:
The committee to whom was referred the memorial of the
Legislature of the State of Georgia, respecting disputed limits
between that State and the State of North Carolina, having
taken into consideration the matter of the said memorial, as
well as such information as the documents attached to the
memorial and former reports made to this House afford, beg
leave to submit the following report:
Between the latitude of 35 degrees north, which is the southern
boundary claimed by North Carolina, and the northern boundary
of Georgia, as settled by a convention between that State and
South Carolina, intervenes a tract of country supposed to be
about twelve miles wide, from north to south, and extending in
length from the western boundary of Georgia, at Nicajack on the
Tennessee, to her north-eastern limits, on the Tugalo. This
tract was consequently within the limits of South Carolina,
and in the year 1787 it was ceded to the United States, who
accepted the cession. This territory remained in possession of
the United States until 1802, when it was ceded to the State
of Georgia. From the most correct information relative to the
said territory, it appears that it is inhabited by about 800
souls, and (to adopt the words of a former report) it is not
shown at what period they made the settlement, nor had they any
title to the land on which they settled and made improvements.
No such title indeed could have been created, as those lands
remained within the boundary of the Cherokees until the year
1798, when a part of this territory was purchased by a treaty
held at Tellico. It does not appear that the lines that bound
the tract of land in question, and divide it from Carolina,
have ever been established by public authority.
After the transfer of this territory by the United States to
Georgia, the Legislature of that State, in compliance with
the earnest request of those self-governed people, praying
that they might be allowed to participate in the civil rights
enjoyed in common by the people of the United States, passed
an act in the year 1803 to organize the inhabited part of the
territory, and to form it into a county, authorizing, at the
same time, the Governor to appoint commissioners, to meet such
commissioners as should be appointed by the Government of North
Carolina to ascertain and plainly mark the line dividing this
territory from North Carolina. The Governor of North Carolina
expressed a readiness to accede to the proposition, under the
provisions of a former act of the Legislature of that State,
but clogged with a condition which the Legislature of North
Carolina refused to depart from, and which the Legislature
of Georgia refused to accede to. Her reason may be found
in a letter from General Pickens, of the State of South
Carolina, attached to a report made to the House respecting
that territory while the property of the United States. The
letter states, that before the people inhabiting that territory
settled on the lands, it was surveyed, and grants obtained for
most part of it from the State of North Carolina, and probably
by men who cared little whether the land was within the
Indian claim or the limits of South Carolina. Your committee
conceive that they have no right to enter into the feelings
of either of the parties, or to pronounce upon the justice of
the condition made by North Carolina on the one part, or its
rejection by Georgia on the other, and have therefore confined
their attention to that part of the memorial which calls upon
Congress to define and mark out the thirty-fifth degree of
latitude--the line which North Carolina admits to bound her
State--upon the south and north of which Georgia can have no
claim of territory. Your committee, after giving to this point
the most deliberate consideration, are of opinion that the
United States are bound, in good faith, to use their friendly
offices with the State of North Carolina for obtaining an
amicable adjustment of the limits of the territory, which they
have transferred to Georgia, in all parts where such limits may
be disputed.
Your committee, therefore, beg leave to offer the following
resolution:
_Resolved_, That the President of the United States
be authorized to appoint a commissioner, to meet such
commissioners as may be appointed by the States of North
Carolina and Georgia, for the purpose of ascertaining and
running the line which divides the territory transferred by the
United States to Georgia, from North Carolina.
The report was read, and referred to a Committee of the whole House on
Friday next.
THURSDAY, February 13.
_Society of Harmony._
The House went into a Committee of the Whole on the bill received
from the Senate, the object of which is to authorize the location of
a quantity of land in the Indiana Territory by George Rapp and his
associates, they paying two dollars therefor, and giving them a credit,
without the payment of interest, for six years, when they are to pay
one-fourth of the purchase money, and the residue in six annual payments,
on condition that, agreeably to prescribed terms, the vine shall be
cultivated.
Mr. MCCREERY stated that George Rapp and his associates, amounting to
about 3,000 persons, were natives of the Electorate of Wirtemberg; that
they were Lutherans, who had fled from oppression in that country; that
they were mostly cultivators of the vine, and wished an extension of the
usual time for paying for public lands, they not having the means of the
common payment; they wished to live together, and to cultivate the vine
for their principal support, for their prosperity, and for the good of
the community, in introducing its culture into this country.
Mr. ELY observed that the bill appeared to give a preference in the
sale of the public lands; that the bill was presented from the Senate
without the documents or testimony which might justify this preference;
he therefore moved that it should be committed to the Committee on Public
Lands.
Mr. GREGG.--They obtain a whole township of the best land at only two
dollars per acre, and it is proposed to extend to them an unusual
indulgence in the time of payment. He would not agree to it.
Mr. FINDLAY spoke in favor of the bill.
Mr. CONRAD.--The indulgence of time for payment is not unprecedented. He
showed an act granting twelve years for payment where land was purchased
for the same purpose, and that act does not bind the purchasers to plant
the vine, whereas this does. It were better to make a present of the land
than not have the settlement among us of such persons. If not thus sold,
it is more than probable that the land will lie waste and unsold more
than the six years.
Mr. OLIN.--If we can be justified in a sale of this kind, why oblige
foreigners instead of our own countrymen? We have citizens enough of our
own who would be glad to purchase on such terms.
Mr. SLOAN.--Though I drink no wine myself, I have no wish to prevent
others, for I think it may often be serviceable. I consider the
indulgence as to the time of payment in the light of an encouragement or
bounty, that may prove useful to us as well as the applicants.
Mr. SMILIE.--I cannot say with the gentleman from New Jersey that I drink
no wine, for I certainly do when I can get it. I do not consider it as
a valid objection that the petitioners are foreigners. I am myself a
European, who have fled from oppression in the country where I was born.
How great a part of Pennsylvania is settled by such characters!
Mr. MCCREERY.--The applicants are men of piety and industry. Let us give
them a good chance, for our own sakes as well as theirs, to introduce the
culture of the grape here.
Mr. FINDLAY.--If this indulgence be not given, the land will lie waste.
We wish to populate the territory. Their settlement will enhance the
value of the public lands around them.
Mr. ELY.--I am sorry my motion has occasioned so much debate. I was
ignorant of the circumstances relating to this society, and to the
character of it; my object was information, not an intention to defeat
the bill. We deviate from the usual mode, which is to have the report of
a committee in cases of this sort.
Mr. GREGG.--This bill very improperly authorizes a deviation from
the established practice of selling public lands--it is a change of
principle. I do not wish to see so great a body of foreigners settled
together; we shall have a little Wirtemberg; we must legislate for them;
they cannot speak our language; they cannot serve as jurymen, and from
the information I have received, I am confident they will not succeed in
cultivating the vine in that country.
Mr. BEDINGER.--I am a shareholder in a vineyard in Kentucky, and our
success has exceeded our most sanguine expectations.
Mr. MACON.--In order to try the sense of the committee, I move to strike
out the words “George Rapp and his associates.” Why should we not grant
bounties for raising wheat or corn as well as the vine? If wine can be
made here to advantage, there is no need of the encouragement of this
House. A few years since we raised no cotton, but the profit of this
culture once known, it has become an article of vast exportation. What
claim have these aliens over our own citizens? They have been oppressed;
put your finger on any spot of Europe that is not under oppression. If
you commence this new system, all the best sections of land will be taken
up in this manner. Who will not purchase on such terms?
Mr. LYON.--Lands not belonging to the public may be had for less than one
dollar an acre in many places.
Mr. OLIN.--We have men that can cultivate the vine as well as those
foreigners. It is a plain, simple thing.
Mr. JACKSON.--If disposed to grant favors, let us grant to those who have
the greatest claim. There are many old soldiers of the Revolution, who
would rejoice to purchase land on these terms. Why encourage the making
of wines? They are luxuries, not necessaries. Lands on the Ohio are from
six to eight dollars in many places; this bill gives the petitioners
their choice of the best, and they pay no interest for their purchase, at
two dollars.
Mr. SLOAN.--This bill will enhance the value of lands adjoining. It will
be a humane act.
Mr. JACKSON.--I rise merely to state a fact I have just now learned.
There are at this very time men waiting for the passage of this bill, who
are ready to give six dollars per acre for much of the very land the bill
contemplates.
Mr. HOLLAND.--Some small tracts only may sell for six dollars. We bind
the purchasers to plant the first year 9,000 plants, and 3,000 annually
after.
Mr. MORROW, of Ohio.--I rise only to reply to the gentleman from
Virginia, (Mr. JACKSON.) I never seek for information in the lobby, nor
the gallery, nor Pennsylvania avenue. The gentleman is misinformed.
Mr. JACKSON.--My authority is an honorable member near me--an authority
at least as respectable as any the gentleman from Ohio can have.
The question was taken--50 for striking out, 51 against it. The committee
rose, and the House considered the bill.
Mr. CROWNINSHIELD.--There is no interest to be received. I have made a
calculation that, considering the want of interest to the time of the
last payment, we now get only ninety-seven cents per acre. I move to
strike out two, and insert three dollars per acre.
The motion was lost--44 only for it.
Mr. CROWNINSHIELD.--There are in a section about 23,000 acres, making
about 46,000 dollars. I move to insert six per cent. interest till paid.
Mr. NICHOLSON.--Public lands are sold without interest for a certain
time. If the money be not punctually paid, I am willing the debt should
be on interest after.
Mr. JACKSON.--I move to postpone the consideration of the bill
indefinitely.
The ayes and nays were called for, and taken on this motion--ayes 53,
nays 59.
Mr. CROWNINSHIELD’s motion for the insertion of interest was lost--52 to
49.
Mr. D. R. WILLIAMS moved the insertion of two instead of six years for
payment of the land. Motion lost--54 to 45. The bill passed to a third
reading for to-morrow.
FRIDAY, February 14.
_Indiana Territory._
Mr. GARNETT, from the committee appointed on the eighteenth of December
last, to whom were referred the report of a select committee on the
letter of William H. Harrison, made the seventeenth of February, eighteen
hundred and four; a memorial of the Legislative Council and House of
Representatives of the Indiana Territory, and several petitions of sundry
inhabitants of the said Territory; made the following report:
That, having attentively considered the facts stated in the
said petitions and memorials, they are of opinion that a
qualified suspension, for a limited time, of the sixth article
of compact between the original States and the people and
States west of the river Ohio, would be beneficial to the
people of the Indiana Territory. The suspension of this
article is an object almost universally desired in that
Territory. It appears to your committee to be a question
entirely different from that between slavery and freedom,
inasmuch as it would merely occasion the removal of persons,
already slaves, from one part of the country to another. The
good effects of this suspension, in the present instance, would
be to accelerate the population of that Territory, hitherto
retarded by the operation of that article of compact, as
slaveholders emigrating into the Western country might then
indulge any preference which they might feel for a settlement
in the Indiana Territory, instead of seeking, as they are now
compelled to do, settlements in other States or countries
permitting the introduction of slaves. The condition of the
slaves themselves would be much ameliorated by it, as it is
evident, from experience, that the more they are separated and
diffused, the more care and attention are bestowed on them
by their masters, each proprietor having it in his power to
increase their comforts and conveniences in proportion to the
smallness of their numbers. The dangers, too, (if any are to
be apprehended,) from too large a black population existing
in any one section of country, would certainly be very much
diminished, if not entirely removed. But whether dangers are
to be feared from this source or not, it is certainly an
obvious dictate of sound policy to guard against them, as far
as possible. If this danger does exist, or there is any cause
to apprehend it, and our Western brethren are not only willing
but desirous to aid us in taking precautions against it, would
it not be wise to accept their assistance? We should benefit
ourselves, without injuring them, as their population must
always so far exceed any black population which can ever exist
in that country, as to render the idea of danger from that
source chimerical.
Your committee consider the regulation contained in the
ordinance for the government of the Territory of the United
States, which requires a freehold of fifty acres of land as
a qualification for an elector of the General Assembly, as
limiting too much the elective franchise. Some restrictions,
however, being necessary, your committee conceive that a
residence continued long enough to evince a determination to
become a permanent inhabitant, should entitle a person to the
rights of suffrage. This probationary period need not extend
beyond twelve months.
The petition of certain settlers in the Indiana Territory,
praying to be annexed to the State of Ohio, ought not, in the
opinion of your committee, to be granted.
After attentively considering the various objects desired in
the memorials and petitions, the committee respectfully submit
to the House the following resolutions:
1. _Resolved_, That the sixth article of the ordinance of
1787, which prohibits slavery within the Indiana Territory,
be suspended for ten years, so as to permit the introduction
of slaves, born within the United States, from any of the
individual States.
2. _Resolved_, That every white freeman of the age of
twenty-one years, who has resided within the Territory twelve
months, and within the county in which he claims a vote, six
months immediately preceding the election, shall enjoy the
rights of an Elector of the General Assembly.
3. _Resolved_, That the petition of certain settlers in the
Indiana Territory, praying to be annexed to the State of Ohio,
ought not to be granted.
4. _Resolved_, That it is inexpedient, at this time, to grant
that part of the petition of the people of Randolph and St.
Clair which prays for a division of the Indiana Territory.
Referred to a Committee of the Whole on Thursday next.
_Society of Harmony._
The bill allowing George Rapp and his associates to locate a township of
land in the Indiana Territory on certain conditions, was read a third
time.
Mr. CLARK moved to recommit the bill to the Committee on Public Lands.
The bill wants several amendments. There is no penalty, should the
petitioners neglect to plant the vines.
Mr. JACKSON.--I second the motion of my colleague. These public lands
formerly belonged to the State of Virginia; when ceded by that State,
the Government of the United States were made trustees “for the common
benefit of the Union; faithfully and _bona fide_ for that use, and for
no other,” to use the words of the act granting the cession. This is a
contract between Virginia and the United States; we are in the place
of trustees; we cannot violate the trust, yet this mode of selling
the land for the benefit of individual foreigners is a violation of
the trust. This precedent will be quoted hereafter, and will operate
most injuriously. Notwithstanding what the gentleman from Ohio (Mr.
MORROW) has said, I cannot help saying, that there are men ready at this
time to give six dollars per acre for this very land, or land of this
description. This bill will give them a whole township, 23,000 acres of
land of the first quality. I cannot conceive the cultivation of the vine
as a national benefit, as being “for the common benefit of the Union.”
It will diminish the revenue, should vines be raised in abundance here.
Wine is heavily taxed, and the tax is paid by the rich. I am altogether
opposed to the bill.
Mr. SMILIE.--A new argument indeed is brought forward by the gentleman
from Virginia. We can hardly turn round without somehow invading the
rights of Virginia. If we talk of building a bridge or erecting a dam, at
once the rights of Virginia are invaded. If we wish to dispose of some of
our public land in the West as we think proper, the rights of Virginia
are invaded. Virginia claimed lands stretching to the north pole; she
took what she wanted, and gave a quit claim to the United States for the
rest. Some of the House think this sale, this indulgence in the payment
for the purpose of introducing the cultivation of the vine, and of
serving these worthy foreigners, will be “for the common benefit of the
Union;” some think otherwise; it is merely a matter of opinion, and a
majority of opinion must decide.
Mr. MORROW.--There are some small tracts of land, on which what are
called _squatters_ are settled, and where already improvements have been
made, which would sell for four or six dollars per acre; but I doubt
whether any township of land would sell for two dollars, even with the
usual instalments.
Mr. PARKE, of the Indiana Territory.--Even in the settled parts of the
Territory, lands are not above three dollars.
Mr. ELY.--Gentlemen have said that poor lands were proper for the vine.
It may be so; but the petitioner and his associates mention also the
raising of hemp, which requires the best bottom lands. I am far from
wishing to discourage these settlers; but they are already among us, and
will not leave this country. They are represented to be (and I fully
believe the representation) men of piety and morality; the United States
are not beyond improvement in piety and morality; instead of putting them
in one, and that a far-distant place, let them be scattered over the
Union, that all parts may be benefited. Such a body of men, of one sect,
of one language, will wish to seclude itself from the rest of the Union;
they will wish what this bill gives them, and what I think injurious,
an exclusive territory. We are deviating from our common usage in the
sale of land. Is the deviation necessary or proper? Gentlemen have said
they were flying from oppression to this land of liberty; liberty was
their object; a republican Government; yet it appears that when they left
Wirtemberg, their expectation and intention was to settle in Louisiana,
then under the Spanish Government. The bill obliges them to plant a
certain number of vines; perhaps the expense of this will not be $100,
and there is no forfeiture even if they should refuse to comply. It may
prove a fine speculation for them; they may get perhaps the finest land
and the best salt lick in the territory.
Mr. NICHOLSON, (after recapitulating the arguments previously
adduced.)--I have no objection to the settlement of the applicants in one
body; nor can I see any probable evil resulting from it. The gentleman
from Massachusetts has informed us that the people of the United States
are bad enough, and that the distribution of this society over the whole
States might prove advantageous to the Union; if not in one body, they
must settle on lands for sale in different parts of Kentucky, Tennessee,
Ohio, &c. This distribution would be unfair, as Massachusetts has not
lands for sale, except perhaps in the district of Maine; hence that State
would be deprived of the advantage it might obtain by an improvement of
its piety and morality from a distribution of a part of this society
among the citizens of that State. I know not why the sale of this land,
according to the terms of the bill, should be considered as not conducing
to the good of the nation. We have given lands for colleges and schools,
and for the support of clergymen; we have also sold lands, the proceeds
of which were to be expended for the improvement of roads--roads by which
the public at large would be benefited, though the citizens of Maine or
Georgia might never travel them.
The bill was recommitted to a Committee of the Whole--62 to 53, and made
the order of the day for Monday next.
MONDAY, February 17.
_Non-Importation of Slaves into Territories._
Mr. DAVID R. WILLIAMS, from the committee appointed, on the seventh
instant, “to inquire whether any, and, if any, what, additional
provisions are necessary to prevent the importation of slaves into the
Territories of the United States,” made the following report:
That the act of Congress, passed the 7th April, 1798,
authorizing the establishment of a Government in the
Mississippi Territory, permits slavery within that Territory,
by excluding the last article of the ordinance of 13th July,
1787. The seventh section of this act prohibits, after the
establishment of a Government, the importation of slaves from
any port or place without the limits of the United States; of
course, the right to import slaves from any place within the
limits of the United States is not restricted.
The act of 2d March, 1805, further providing for the Government
of the Territory of Orleans, secures to its inhabitants
“all the rights, privileges, and advantages, secured by the
ordinance of 13th July, 1787, and now enjoyed by the people of
the Mississippi Territory.” The importation of slaves, from
any place within the limits of the United States, is one of
those rights; consequently, the inhabitants of the Territory of
Orleans may exercise it also.
The tenth section of the act of 26th March, 1804, “erecting
Louisiana into two Territories, and providing for the temporary
government thereof,” prohibits the introduction of slaves
into that Territory, from any place, “except by a citizen of
the United States, removing into said Territory, for actual
settlement, and being at the time of such removal _bona
fide_ owner of such slave or slaves.” This tenth section,
being repugnant to the first section of the act of 2d March,
1805, was repealed by the last section of said act, which
declares: “that so much of an act, entitled ‘An act erecting
Louisiana into two Territories, and providing for the temporary
government thereof,’ as is repugnant with this act, shall, from
and after the first Monday of November next, be repealed.”
The committee are in the possession of the fact, that African
slaves, lately imported into Charleston, have been thence
conveyed into the Territory of Orleans; and, in their opinion,
this practice will be continued to a very great extent while
there is no law to prevent it.
Upon this view of the subject, the committee believe it is
expedient to prohibit any slave or slaves, who may be hereafter
imported into the United States, from being carried into any
of the Territories thereof; they, therefore, respectfully
recommend the following resolution:
_Resolved_, That it shall not be lawful for any person or
persons to import or bring into any of the Territories of
the United States any slave or slaves that may hereafter be
imported into the United States.
The report was referred to the Committee of the Whole to-morrow.
TUESDAY, February 18.
_Society of Harmony._
The House resumed the consideration of the bill sent from the Senate,
entitled “An act to empower George Rapp and his associates, of the
Society of Harmony, to purchase certain lands;” and a motion being made
further to amend the said bill by inserting, at the end thereof, the
words following:
“And interest, at the rate of six per cent, per annum,
commencing from the end of the four years aforesaid, shall be
charged on the whole of the six last payments, until the same
shall be received into the public Treasury:”
The question was taken that the House do agree to the said amendment, and
resolved in the affirmative--yeas 62, nays 44.
_Ordered_, That the said amendments, together with the bill, be read the
third time to-day.
The said bill, together with the amendments thereto, was read the third
time; and, on the question that the bill, as amended, do pass, it passed
in the negative--yeas 46, nays 46.
Mr. SPEAKER declaring himself with the nays. And so the said bill was
rejected.
_Church in Georgetown._
Mr. FINDLAY called up the bill for incorporating the Presbyterian Society
in Georgetown. The bill was long, and was read by sections. One section
authorized a lottery for finishing the church.
Mr. CLARK moved to strike out the section; you would not convert your
church into a gambling house. I never considered that religion of the
best kind which was supported by lotteries.
Mr. SLOAN.--I am for striking out. I never will consent to an act
authorizing public gambling.
Mr. CLARK.--Corporations of all kinds, but more particularly
ecclesiastical corporations, are objects of my particular hatred.
Religion I do not consider of this world. I am no enemy to it, however;
I adore it. To try the principle of the bill, I move to strike out the
first section.
Mr. SOUTHARD.--I can see no possible objection to an act of incorporation
in this as well as other cases. There are many advantages a society
of this nature cannot enjoy without incorporation. Donations from the
wealthy, who often bequeath sums for the benefit of religion, cannot be
held without such incorporation.
Mr. SLOAN.--We have no acts of incorporation in the society in which
I was brought up, (the Quakers,) yet we find no difficulty in the
management of our affairs--no difficulty in receiving gifts. I abhor all
ecclesiastical corporations. Congress never has, and I hope never will,
stain its pages with an act of this sort.
Mr. SMILIE.--I hope the gentleman from New Jersey will not frighten
himself with the echo of his own words. No evil can result from this
act. The opinion of the Quakers is, that no money ought to assist them
in their passage to heaven; others believe that money is employed to the
best advantage in this way; hence the Quakers never pay those who preach
for them, while almost all other classes of Christians do. The gentleman
from New Jersey surely does not wish to forbid a clergyman’s payment. I
hope that citizens of different persuasions may all have a full enjoyment
of their modes of religious worship.
Mr. ELMER.--There never was a nation without religious establishments.
All sects, except the Quakers, pay their preachers; and if the preachers
among the Quakers have not a direct salary, they find means to obtain
something of that kind indirectly, though not from direct funds.
Considered in a moral, political, and religious view, these acts of
incorporation are highly necessary and proper for the well-being of
society.
Mr. CLARK.--This is the first request that has been made to Congress for
a religious incorporation; if we check it now, we may check what may
hereafter prove an immense evil. It is from small beginnings that great
disasters usually rise. Should this bill pass, I foresee what may perhaps
in time come to pass. I can foresee the practice of pious frauds. The
priests dressed in their canonicals, attending the rich man on his dying
bed, and urging the repenting sinner to part with a portion of his wealth
for the good of the church, and for the obtainment of a certain passport
to heaven.
Mr. FINDLAY.--This is an accommodation Congress only can grant, and which
is enjoyed in all the States.
Mr. NICHOLSON.--I never knew an application of this kind to be refused
in the State, a part of which I have the honor to represent. In the
Legislature of that State, half a dozen applications of this sort would
have been granted in the time we have already spent in this unnecessary
and shameful debate. Why should we refuse? If a society of Hindoos in the
District should make such an application, I should not think of refusing
them. If the dying rich man believes the bestowment of a part of his
wealth for the benefit of religion will be a deed rendering him more
acceptable to heaven, shall he be deprived of this right to give, because
another thinks otherwise?
Mr. RHEA, of Tennessee, moved to postpone the consideration of the bill
till the 1st of May.
Mr. SMILIE spoke against postponement.
Mr. QUINCY.--I had not intended to open my mouth on a subject that
appeared to me so plain; where our duty was so apparent; but the debate
has taken so strange a turn that I must make a few remarks. This is a
mere civil affair--religion has nothing to do with it, so far as we
are concerned in granting or refusing the application. I never knew an
application of this kind to be refused--it is an application for the
grant of certain powers to a certain number of persons; it is like an
application for the incorporation of a bank, or any thing similar.
Congress have only to inquire whether or not the ends are proper; whether
the powers asked are or are not likely to be injurious. The gentleman
from Virginia (Mr. CLARK) says, that incorporations of all kinds,
particularly ecclesiastical, are objects of his great abhorrence. The
objects of his abhorrence must then be very numerous, for they almost
every where abound. In Massachusetts nothing can be more common. The
incorporation of a religious society is not for the mere purpose of
enabling such a society to receive the gifts that may be bequeathed them;
the incorporation is for the purpose of enabling a society, or number
of persons, to transact their business, to hold property, to sue and
be sued, &c. Property they must hold, and, if not held as a corporate
body, they must hold it as joint tenants--tenants in common--or they
must have trustees to hold it for them, or a part must hold as trustees
for the rest; and hence arise innumerable difficulties, litigations, and
disagreements--difficulties that will not arise in corporate bodies. You
have only to take care, when an act of incorporation is granted, that no
powers be granted that may have an injurious effect.
Mr. SOUTHARD.--The incorporation of almost all societies is for the
advantage of the public; the incorporation of religious bodies has ever
been beneficial to morals and to society at large. It enables them to
give and to receive justice; to sue and to be sued. The benefits of
incorporation are innumerable; what were society without them? what are
we but a corporate body?
The bill passed to a third reading by a large majority.
WEDNESDAY, February 19.
_Church in Georgetown._
The bill to incorporate the Trustees of a Presbyterian Church in
Georgetown was read a third time.
Mr. ELMER supported, and Messrs. JACKSON, SLOAN, HOLLAND, and RHEA,
opposed the bill.
The question was taken by yeas and nays, and the bill passed--yeas 72,
nays 40.
THURSDAY, February 20.
_Charlestown, (Kanawha,) Virginia._
Mr. CROWNINSHIELD, from the Committee of Commerce and Manufactures, made
a report on the petition of sundry inhabitants of Charlestown, Virginia,
praying that said place may be made a port of entry and delivery.
The report is detailed, and assigns a variety of reasons against the
expediency of granting the prayer of the petitioners, and concludes with
a resolution that they have leave to withdraw their petition.
The House having taken the report into consideration--
Mr. JACKSON observed that the facts detailed in the report were
conceded. It was probable that there would never be a vessel entered at
Charlestown from a foreign country. With regard to the success of the
prayer of the petitioners, Mr. J. said he should not have been sanguine,
but for a constitutional provision which he considered imperative. No
port of entry existed in the western part of Virginia, in consequence of
which, vessels sailing from Charlestown were obliged to pay duties at New
Orleans. The constitutional provision, to which he alluded, was this: “No
preference shall be given by any regulation of commerce or revenue to
the ports of one State over those of another; nor shall vessels bound to
or from one State be obliged to enter, clear, or pay duties in another.”
Was it not obvious that a preference was given to the ports of one State
over those of another by requiring the vessels of the one, to enter and
clear in the ports of the other; and was it not also obvious that the
latter part of the provision was equally violated? It would be a great
convenience to the petitioners to give bonds and take out clearances in
the neighborhood of the place where their vessels are built, instead of
being obliged to go to a distance of 2,000 miles, where they would find
themselves among strangers.
Mr. CROWNINSHIELD observed that there were several ports of entry already
in Virginia from which vessels might clear without paying duties at
New Orleans. He further observed that New Orleans and Natchez were not
within the limits of a State, and therefore were not embraced by the
constitutional provision referred to; and added that duties were only
paid on the entry of vessels from a foreign country.
Mr. J. C. SMITH thought there was sufficient plausibility in the remarks
of the gentleman from Virginia, to give the subject a full discussion.
He therefore moved a reference of the report to a Committee of the whole
House on Monday, which was agreed to--yeas 59.
FRIDAY, February 21.
_Payment of Witnesses._
The House resolved itself into a Committee of the Whole on the bill from
the Senate, providing for the payment of the witnesses on the trial of
Samuel Chase.
Mr. J. C. SMITH said, at the close of the last session, a bill providing
for the payment of the witnesses on the part of the United States, had
gone from the House to the Senate, and been disagreed to by them. The
Senate on their part, had passed a bill providing for the payment of all
the witnesses, to which the House had disagreed. A conference had taken
place on the disagreeing votes of the Houses, and the bill had been lost
from a want of concurrence. The consequence was, the witnesses still
remained uncompensated; some of whom have sustained heavy expenses.
Petitions received this session from several witnesses on the part of
the prosecution, had been referred to the Committee of Claims, who had
reported a bill which was the same in substance with that adopted by
the House the last session; the committee not considering themselves at
liberty to depart from the principle then established by the House.
It was for the House to decide how long this unprofitable contest (for
unprofitable it surely was to the witnesses) should be kept up. Mr. S.
said he was not disposed to go into a consideration of the question,
whether the expenses of an impeachment should in all cases be incurred
by the Government. He would barely observe that the Senate had been
unanimous; and if the House should adhere to the ground they had taken,
no compensation would be allowed to the witnesses. He submitted it,
whether, under these circumstances, it were proper to keep up such a
conflict? It had so happened that many of the witnesses, summoned by the
accused, had been used by the managers, and the process of summoning
them had been similar on both sides. In the bill there was an omission
to provide for the expenses incurred by the managers. If no other
gentleman proposed an amendment, he should think it his duty to offer
one, providing for these expenses. He hoped the committee would agree to
the bill. Some gentlemen might think, by agreeing to it, they evinced an
opinion of the guilt or innocence of the accused. But such a vote could
not be viewed in this light. The House had exercised their constitutional
right by voting an impeachment, while the Senate had exercised the
same right in acquitting the accused. The same body who had acquitted,
had sent down this bill, involving their opinion that the proposed
compensation to witnesses was right. Indeed he considered the bill from
the Senate as a taxation of costs by the court who sat on this occasion.
Mr. MACON, with a view to try the question, whether the House would agree
to pay all the witnesses, moved to insert after the word _witnesses_
the words--“on behalf of the United States.” He said the history of
this business given by the gentleman from Connecticut was correct. The
accused had been acquitted by a constitutional majority, consisting of
a minority of the Senate. It was not, he believed, the practice in any
criminal court, of any State in the Union, for witnesses summoned by
the defendant, to be paid by the State. The States, in many instances,
pay their own witnesses, where the person accused is not convicted, but
with respect to the conflict between the two Houses, he was convinced
the decision of this House was correct; and that it accorded with the
general usage throughout the United States. If there was an exception,
he did not recollect it. It was true that one or the other House must
give way, or the bill would be lost. He would much rather that it should
be rejected by the disagreeing votes of the two Houses, than that it
should pass as it then stood. If the Senate had offered this bill, it is
equally true that the grand jury, who make a bill, have refused it. The
two Houses stood on the same ground. One are the triers and the other the
hearers. If Congress agree to pay all the expenses of an impeachment, the
impeached may run the expenses to such an amount as to prevent a trial.
Why pay the expenses in this case, if not in any other? Shall they be
paid because this man is a judge, and not a man arraigned before a judge?
When a judge is tried he deserves no more indulgence than a private
individual, and though he is acquitted, the acquittal is not such as to
convince the nation, or any other body of men, that he is innocent. It
was not that kind of acquittal which an honest man would wish. It was
constitutional, but not by a majority of the Senate. Are we, under these
circumstances, obliged to pay the witnesses he has chosen to summon?
Believing, as he did, the man guilty, and the charges in many instances
supported, the payment of his witnesses appeared to him a very strange
thing. In this, as in every other case, he was willing to yield to a
constitutional decision, but he could never consent to pay the witnesses
of the accused.
Mr. ALSTON said the amendment went to try the question, whether the House
would agree to pay all the witnesses summoned on the trial of Judge
Chase. Before it was made, the honorable Speaker ought to have told the
House whether they could determine which witnesses were summoned on the
part of the United States, and which on the part of Judge Chase. From
every thing which he had seen, (and he had examined all the documents on
the subject,) he had found no data upon which to determine what witnesses
had been summoned on one side or the other, unless from the recollection
of gentlemen, by which he supposed the House would not consent to be
governed. When the question was before the House the last session, he
had expressed his doubts whether they ought to pay the witnesses of
an accused man, whether he was acquitted or convicted; but he was now
convinced that, until Congress passed a law, prescribing how witnesses
are to be paid, they were bound to pay them. No such law had been passed.
He would ask gentlemen learned in the law, whether a witness on the part
of Judge Chase could demand compensation from him? Have we passed any
law, prescribing how much shall be paid, or how it shall be done? No such
law has been passed. Mr. A. said he thought gentlemen were carrying their
prejudices too far in this instance. He had voted for five out of eight
of the articles, but the Senate had acquitted him of all of them. He was
contented with this decision, and so far as he was acquainted with the
sentiments of those he represented, he believed they too were satisfied.
It was not now a question how this principle should be settled. If a
general law were brought before them, there was no doubt, but that, if a
man so conducted himself as to bring himself to a trial, he should pay
his own witnesses, provided such law declared how much they should be
paid. The honorable Speaker had said there was not a State in the Union
in which the witnesses of a person indicted and acquitted were paid by
the State. Mr. A. said he believed, in Virginia, when a man was indicted
and acquitted, he was not subject to the payment of costs. If this were
true, one State at least, and that the largest in the Union, had set a
different example; and if precedent was entitled to any influence, it was
against the Speaker. Mr. A. said this, however, had no weight with him.
The great objection with him was, that they could not discriminate the
witnesses of the United States from those of the accused; and if they
could ascertain them, there was no law prescribing how the latter should
be paid by the accused.
Mr. JACKSON believed Congress bound to render compensation to the
witnesses on the trial of Judge Chase, on the abstract principle of
justice and right, as well as from precedent and practice. The argument
of the honorable Speaker militated against the inference drawn by him.
He says the accused may multiply witnesses to such an extent as to
defeat a prosecution. If the proposition, however, be examined in all
its bearings, it will be found to operate most severely, and almost
exclusively, on the man impeached by the House of Representatives, no
matter for what cause, or whether he is guilty or innocent. If the
House are determined to destroy him, it is only necessary to vote an
impeachment, which will impose upon him a ruinous burden. Mr. J. said
he did not apply these remarks exclusively to the impeachment of Judge
Chase. The Journal of the House would show that he was in favor of
his impeachment. But as he had been acquitted by the constitutional
tribunal, clothed with authority to pronounce him guilty or innocent--the
dernier tribunal constituted for such cases--he did not consider himself
justified to say, after their decision, that he was guilty. He held
himself bound by the judicial decisions and laws of the country, though
as an individual he might dissent from some of them. The United States
might, in case a person acquitted on an impeachment is compelled to
pay his witnesses, multiply charges embracing the whole life of the
accused, and tracing him from the district of Maine to Georgia, so as
to compel him, in order to refute the charges, to adduce ten times as
many witnesses as would otherwise be necessary. The true rule is, that
the court shall decide what witnesses are proper to be taxed in the
costs, and what are not. The Senate, who in this instance are the court,
have decided that all shall be taxed. They were perfectly competent to
decide whether any witnesses of the accused were brought forward without
sufficient cause, or whether they were essential to the defence. It
is manifest, by the bill under consideration, that they have made the
latter decision. The gentleman from North Carolina is correct in his
statement of precedent. The uniform course in Virginia, is to tax the
attendance of witnesses, who are paid out of the public treasury; and
those on the part of the defendant in the same way as those on the part
of the prosecution. This practice has been extended so far as to embrace
the payment of witnesses from another State. In a late case, although
as far as the opinion of the court could go, a man was declared guilty
of the crime with which he was charged, yet, the jury having pronounced
him innocent, a witness on his part, brought from Kentucky, was paid out
of the public treasury. This is not the case where the individual is
convicted. If he possess sufficient property, that is answerable for the
expenses.
The Senate, undoubtedly, possess the right to say whether the witnesses
adduced are necessary; and if, in any future case, improper witnesses
shall be brought forward, they may refuse to tax them. This bill does
not provide for all cases of impeachment, but is confined to the case of
Samuel Chase. Mr. J. said he would submit whether it was proper or just
to compel men at a great expense to attend at the seat of Government in
an inclement season of the year without giving them a compensation. If
a law had been previously passed prescribing that the witnesses of the
accused should be paid by him, they would have required some assurance
from him. But as no discrimination had been made between the witnesses,
they came forward in full faith that the Government would allow them a
liberal compensation.
Mr. NICHOLSON said he had but a few observations to make on this subject:
indeed, indisposition disabled him from making many. He considered this
bill as calculated to establish a great principle--a principle whether,
in all cases of impeachment, the United States are to bear the burden.
It was not in reference to an individual that he was induced to advocate
the amendment of his honorable friend, the Speaker, but because its
effect would be to establish a principle that would hereafter govern in
similar cases. If the principle were established that in all cases of
impeachment the Government is to bear the expense, it will put it in the
power of the individual impeached to increase the burden to any extent
he pleases. And whenever a man shall be impeached, base enough to hate
the Government under which he lives and holds an office, in a case which
requires but two witnesses, he may summon two hundred. This bill will
establish such a principle, and we shall in all future cases be told that
the witnesses of the accused were paid in the case of Chase. It was for
this reason, Mr. N. said, he advocated the amendment, and to convince the
individual that subjected himself to an impeachment that he must suffer
some pains and penalties. For it was not to be presumed that the House
of Representatives would impeach any man unless there was some color for
it--some reason to induce the nation at large to believe him guilty. An
impeachment speaks the language of the nation, expressed through their
representatives; and whenever a man in office conducts himself so as to
make the nation believe him guilty, it was not desirable to offer the
protection held out in the bill, particularly when a majority in the
other branch also believed him guilty.
But, gentlemen say, this is not the practice in the State courts; and we
are told in Virginia, when a man is acquitted, the State pays the expense
of his witnesses. Mr. N. said this might be so, though he did not know
that it was; it was not so, however, in the courts of the United States.
Any gentleman who doubted this, had only to refer to the treasurer’s
accounts since the Government had been in operation, and he called upon
any such gentleman to show a single charge for witnesses in cases of
acquittal. It is not the practice in England, nor could it be made to
appear by any document, that the witnesses summoned by Warren Hastings,
though he was acquitted, had been paid by the Government. But admitting,
for argument’s sake, the practice to be such in the United States as
it is represented to be in the courts of Virginia, would that meet the
present case? No. In Virginia there was a reciprocity. There, if a man
was convicted, he paid all the costs, and if acquitted, the State pays
them. But, in the United States, do we make the convicted pay the costs?
Had the accused judge been convicted, would gentlemen advocate his paying
all the costs? No. In that case he would have been scot free as to the
payment of money, though he might have sunk in reputation. In Virginia
there is a reciprocity; the convicted either pays the expenses of the
prosecution or goes to jail; whereas, in this case, the United States are
called upon to bear the whole burden. When Judge Pickering was convicted,
was he called on to pay the costs? Such a thing was not then dreamed of.
It was then considered proper that the United States should pay their
own witnesses. The argument, therefore, fails. The only objection of
any weight is that raised by the gentleman from North Carolina. It is
said to be impossible to discriminate the witnesses. The gentleman says
that he has examined the Journals of the Senate, and cannot find any
discrimination. But has he looked at the Journals of impeachment, where
it appears that such witnesses were sworn on the part of the United
States, and such on the part of the accused? Besides, if this evidence
were not on the journal, it could be got from the parties themselves, who
could swear they were summoned on the part of the United States or the
defendant. This was a common thing in the courts of Maryland, and Mr. N.
supposed it was likewise so in other courts. He concluded his remarks by
expressing a hope that the amendment would be adopted.
Mr. EARLY said it was his misfortune the last session to differ with a
majority of the House, and his present opinion was what it then was. His
opinion was not founded either on general principles, or on the practice
of the several States, or United States courts. It was founded on the
peculiar circumstances of this case. Some of these circumstances had
already been stated by gentlemen; but there were some important points
of view in which they might be considered, which had not been noticed.
It was true, as had been stated by the gentleman from North Carolina,
that it could not be distinguished which witnesses were summoned on the
part of the prosecution, and which on the part of the respondent, from an
omission by the Senate, when they prescribed the form of the subpœna, to
distinguish, as it is usual, for which party it was issued. This fact was
abundantly proved by the form of the subpœna. How, then, were witnesses
to know that they were summoned on the part of the United States, or the
respondent? They could not know. There were no circumstances by which
they could acquire such knowledge. The party did not serve his subpœnas
in person, but they were all sent to the marshal of a given State. A
number of them were taken out in blank, and sent to the marshals by
post. The gentleman from Maryland has endeavored to obviate the force
of this fact, by informing us that a discrimination may be made, by the
circumstance of the fact on which side the witnesses were sworn. True;
but no gentleman knows better than himself that the witnesses summoned on
one side were, in some instances, sworn on the other; and he would call
his recollection to the testimony given by Messrs. Tilghman and Rawle.
[Mr. NICHOLSON here explained, and contested the fact. Mr. EARLY agreed
that these two witnesses had been summoned both on the part of the
prosecution and the respondent.]
Mr. EARLY said, whether he was correct or not as to the particular
cases he had alluded to, he was not mistaken as to the general fact.
The gentleman from Maryland had endeavored to obviate the force of this
argument in another way, by representing that the witnesses might be
called on to swear on which side they were sworn. But this could not
be done, but by the passage of some law on the subject. There was no
authority which would justify the Secretary of the Senate in demanding
such an oath, and if the circumstance could be proved, there was no
power, under any existing law, by which the witnesses could recover a
compensation for their attendance. They were compelled to attend--by
whom? By a branch of this Legislature, on pain of imprisonment in case
of disobedience. Whence shall they be indemnified? Will any gentleman
say they can recover from the respondent? If so, let them point to the
law which authorizes such a recovery. Will they say it can be had under
the common law? A majority of this House will not bear them out in the
argument. For it is a standing principle with us, that the common law is
not in force in the courts of the United States. But put this objection
aside--how much shall they recover? Where is the law fixing their per
diem allowance? There is a perfect chasm in the subject.
Mr. E. repeated that his opinion was governed by the peculiar
circumstances of the case; by the omission of the Senate to insert in
the subpœna, on whose side the witnesses were summoned, or to provide
for making any recovery from the accused; or how much, and where the
recovery should be made. He considered the witnesses summoned, owing
to this omission, as being without a remedy, from which resulted the
obligation on the part of the Government, as they made the omission,
to provide a remedy. The gentleman from Maryland, in noticing the
observations relative to the practice of Virginia, stated, that if a
similar reciprocity existed on impeachments, his objection to this bill
in whole or in part would be done away. Mr. E. said, that in his opinion,
this observation fortified the ground he had taken. If there were no
reciprocity in this case, it was for want of a general provision. Let us
then pass a law making this provision, and let it operate in all future
cases. This would be equitable. But the want of reciprocity which arose
with themselves, was no ground for omitting to make the only provision
for the witnesses which the case allowed. When at the last session, in
consequence of the disagreeing votes of the two Houses, a committee
of conference had been appointed, he recollected that a distinguished
member of the other branch, now absent in consequence of an unfortunate
accident, took this ground--that the subpœna did not distinguish on
which side the witnesses were summoned, and made a proposition that
the bill should be so modified as to place the allowance made to the
witnesses of the respondent on this peculiar ground. This proposition
did not then obtain, but Mr. E. was still for taking such a course. He
hoped the amendment of the honorable Speaker would not prevail; in which
case he would move, by way of preamble to the bill, what would place
the allowance on the peculiar ground he had stated, and thus remove the
objections of the Speaker.
Mr. NICHOLSON made some explanation of what he had previously stated in
regard to the practice of courts, and observed that a witness summoned
on one side was not permitted to be sworn on the other, until he had
been previously examined by the party summoning him. He also passed over
the journal of impeachment, to show that the witnesses on the part of
the prosecution had all been examined in the first instance, with a few
exceptions, which were specially noted, before those on the part of the
respondent were called.
Mr. SMILIE, being of opinion that the question was not ripe for decision,
moved that the committee should rise and ask leave to sit again.
This motion having prevailed, the committee rose, and the House adjourned.
MONDAY, February 24.
A new member, to wit, EVAN ALEXANDER, returned to serve as a member of
this House, for the State of North Carolina, in the place of Nathaniel
Alexander, appointed governor of the said State, appeared, produced his
credentials, was qualified, and took his seat in the House.
_Amendment of the Constitution._
ADDRESSING OUT FEDERAL JUDGES.
Mr. J. RANDOLPH observed that some time had elapsed since he gave notice
that he should call up his resolution for amending the Constitution of
the United States. The state of his health had not admitted of his taking
his seat before this day. He therefore availed himself of the first
opportunity to move that the House should resolve itself into a Committee
of the Whole on the state of the Union, with the view of taking that
resolution into consideration.
Mr. MASTERS moved a postponement.
The SPEAKER said there could be no postponement of a subject referred to
a Committee of the Whole on the state of the Union, as it was in order
every day to take up business so referred.
Mr. J. RANDOLPH said, if gentlemen were unprepared, he had no objection
to waive his call until to-morrow.
The SPEAKER remarked that there could be no debate on the priority of
business.
Mr. CONRAD moved to discharge the Committee of the Whole from the further
consideration of the resolution. He said he would briefly assign his
reasons for this motion. The session had progressed and the season
was fast approaching when every man of agricultural pursuits would be
anxious to attend to them, unless detained by important business. He
did not believe the proposed amendment to the constitution so important
as to require immediate attention. He hoped, therefore, that it would
be postponed until the next session, and that the way would thereby be
paved for transacting the important national business that claimed their
earliest attention.
The SPEAKER said the first question was on the House resolving itself
into a Committee of the Whole.
The question was taken on this motion, and carried--yeas 61.
Mr. GREGG was called to the Chair, and the resolution having been read,
as follows:
_Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled, two-thirds
of both Houses concurring_, That the following article
be submitted to the Legislatures of the several States,
which, when ratified and confirmed by the Legislatures of
three-fourths of the said States, shall be valid and binding as
a part of the Constitution of the United States:
The Judges of the Supreme and all other Courts of the United
States shall be removed from office by the President, on the
joint address of both Houses of Congress requesting the same.
The committee divided on agreeing to it, without debate--yeas 51, nays 55.
The committee then rose, and reported their disagreement to the
resolution.
The House having agreed to consider the report,
Mr. J. RANDOLPH called for the taking the yeas and nays on the question
of concurrence.
Mr. CLARK moved a postponement of the consideration of the report to
the third Monday of March, merely with the view of making it give place
to more important business, which he said must be attended to. He said
he had voted against the resolution, not because he was inimical to the
principle involved in it. With a small modification, he should be in
favor of it; and he hoped the period was not distant when, with such a
modification, it would become a part of the constitution.
Mr. J. RANDOLPH hoped a postponement to so distant a day would not
prevail. He was himself desirous that it should be postponed for a few
days, in order to give notice to the House, that there might be a full
vote on what he considered a most important measure. He appeared in
this instance, as in many others, to be in a state of profound error.
The amendment, or deterioration of the constitution, he had always
considered to be a point of the greatest importance. But now, judging
by the opinions of gentlemen, it seemed to be of lesser importance than
the laying a duty of one or two per cent., to continue but for two or
three years. It has, said Mr. R., been a subject of extreme concern to
me, though not myself able to attend to the public business, to find, on
inquiring daily of my colleagues, that the House has refused to do any
business, because on a future day they expected some important business
to come before them. I understand that a very important resolution of a
gentleman from Pennsylvania, on a business so generally denominated the
Yazoo as to require no other name, was postponed on the same ground that
my colleague now wishes the resolution under consideration postponed.
If there is such important business to transact, in God’s name, why not
progress in it? But notwithstanding this immensely important business,
which serves as an excuse for doing nothing, we make no progress in it,
if by it I am to understand the state of our foreign relations. I have
no wish, nor do I intend to allude to any thing which passed while we
were sitting in conclave. But I did hope, when one or two members, who
were represented as the only hindrances to the despatch of business,
were withdrawn from the House for one or two weeks, every thing would
have been completed. I expected the adoption of very different measures
towards Great Britain. Instead of this, I find nothing done. And now,
when an amendment to the constitution is brought forward, which is
allowed to be very important, and when the resolution of the gentleman
from Pennsylvania is called up, we are told by gentlemen, we cannot
attend to these subjects; there is important business which we expect to
have at some future day before us, and therefore we are determined in the
interim to do nothing.
One word as to the remark of the gentleman on my left, (Mr. CONRAD.)
He belongs to a class of men which I highly respect, for the plain
reason that I belong to it myself. He says, the time is approaching
when every man engaged in agricultural pursuits must be anxious to go
home, and therefore he does not wish at present to act on the resolution
I have laid on your table. True; but when men, be they agricultural,
mechanical, or of any other profession, undertake any business, it is
their duty to go through with it at every hazard. I do not know a man in
the House who has suffered more than the individual who now addresses
you by his attendance here, and if I could have found an apology in
my own mind, I should long since have been gone. If the situation of
affairs warranted it, I should be willing to adjourn for two or three
months. But I never can agree to adjourn in the present perilous state
of affairs, and leave the country to a blind and fortuitous destiny.
I must first see something like land, some foot-hold, something like
certainty, instead of a political chaos, without form or body. Before
I consent to go home, I must see something like a safe and honorable
issue to our differences with foreign powers; and I must see, I hope,
another thing--something like an attempt to bring the constitution of
this people back to the principles on which this Administration came
into power.[33] I take this proposition, and that of the gentleman from
Maryland, (Mr. NICHOLSON,) to be two important means of bringing that
Administration back to those principles. My friend from Virginia says, he
expects, at a future period, to obtain this reform. I fear, if delay be
permitted, that we shall get into the situation of another deliberative
assembly, of which every member agrees that reform is necessary, but that
the present is not the accepted time. I am afraid that we are in this
situation already. I believe it, because I see it. It is a most fortunate
circumstance that we made hay while the sun shone; that we got in the
harvest at the first session of the seventh Congress; that we did away
the midnight judiciary and the internal taxes. If those institutions were
now standing, I believe they would be as impregnable as any part of the
system around which gentlemen affect to rally. I believe it, because I
believe appointments would have their effect. Yes, it is but too true,
that patriots, in opposition, are as apt to become courtiers in power, as
courtiers in power are fond of becoming patriots in opposition. So far,
then, from wishing to postpone this measure, I believe that delay will
only serve to enhance the difficulty of obtaining it. It is a maxim laid
down by every man that has written on national policy, that those abuses
which are left untouched in the period of a revolution, are sanctified
by time, and remain as the nest-eggs of future corruption, until they
compel a nation, either to sweep them away, or to sink beneath them.
This, without any exception, is the history of all corruptions; and those
corruptions and abuses not reformed at the first session of the seventh
Congress, what has become of them? Have they been suffered to sleep? If
they have, is it not to be apprehended that they will rise refreshed
from their slumbers with gigantic strength? Fortunate it was that, at
the first session of the seventh Congress the midnight judiciary and the
internal taxes were done away; and it would likewise have been fortunate,
if another measure had been attended to at the same time. It would have
been, in my firm persuasion, very different in its issue from that which
it has been. If the great culprit, whose judicial crimes or incapacity
had called for legislative punishment under the constitution, and which
have given rise to the motion now before us, had been accused at the
first session of the seventh Congress, that accusation would have had a
very different issue. And why? Because it is perfectly immaterial what
a man’s crimes are--every day that elapses between their commission and
the time he is called to answer, lessens the detestation and horror felt
for them, and, of course, enhances the value of his chance of an escape
from punishment. I am persuaded that, in the remarks I have offered, I
have been hurried into some observations that do not strictly belong
to it. Yet these remarks furnish a sound reason for not deferring the
proposition until the time moved by my colleague. I hope, therefore, the
House will reject the postponement until the third Monday of March, and
that a postponement will take place to some time when the House shall be
fuller, when a decision can be made after mature reflection. For, truly,
as to the provision under the constitution, can any man be so mad or
foolish as to think of again trying it? I consider the decision of the
last session as having established this principle--that an officer of the
United States may act in as corrupt a manner as he pleases, without there
being any constitutional provision to call him to an account.
Mr. GREGG.--I feel but little concerned as to the fate of this motion. I
am ready at any time to give my vote on the resolution. As it now stands,
I shall vote against it; but modified, as I have seen it in the hands of
a gentleman from Virginia, I shall vote for it. But my principal reason
for rising, is to say that a great part of the censure cast on the House
by the gentleman from Virginia for not meeting the national business, is
proper and applicable; and I regret that it is so. But if the gentleman
reflects on the subject, he will acknowledge that a great part of the
delay which has occurred, attaches to himself. I, four weeks ago,
submitted a resolution to the House on some points of dispute between
one of the belligerent nations and the United States; I was anxious
that it should be taken up and promptly decided, one way or another.
The gentleman from Virginia then called for certain statements from the
Treasury, which he considered as having a bearing on the subject. Under
that impression the consideration of the resolution was deferred from day
to day; and the statements have not yet been received. I stated, at the
time, that these statements could have no influence on my vote; but other
gentlemen said, they would influence theirs. I regret that we have not
been able to go on with this business. I do not know how long we are to
be kept in this paralytic state. If the gentleman who has called for the
statements, and other gentlemen will agree, I am prepared at once to go
into an examination of the subject. But, as the gentleman from Virginia
was the first to embark the House in this call, I hope he will take a
part of the censure to himself.
Mr. SMILIE.--I am sorry the motion of postponement has been made. I do
not know any other time better than the present for the discussion of
this subject. It is a subject of the last importance to the peace and
happiness of the United States. I am a friend to an amendment of the
constitution relative to the Judiciary Department. Whether that offered
is the best that can be made, or whether it is going too far, I cannot
determine until the subject shall have been investigated in this House.
For my part, I am so sensible that that part of the constitution which
relates to the power of impeachment is a nullity, that I see the utmost
necessity for an amendment. From what we have seen, I do religiously
believe that we cannot convict any man on an impeachment. The resolution
before you goes to place the Judges of the United States on the same
independent footing with those of Great Britain. Whether our situation
requires that they should stand upon higher ground, is a proper subject
for discussion. I am rather inclined to think they ought not.[34] It is
contended, it is true, that, as they have, according to the opinion of
some gentlemen, the right of sitting in judgment on our laws, they ought
to be placed beyond the reach of a majority of Congress. This subject
must, at some time or other, be considered, and some amendment in the
constitution must take place. When the delays and various vexations,
attendant on an impeachment, are considered, it will be evident that
they will generally discourage the House from taking this step; and when
it is likewise considered that a conviction can only take place on the
votes of two-thirds of the Senate, let gentlemen say whether there is any
chance of making the constitutional provision effectual. I despair of it.
With regard to the particular modification which may be given to this
resolution, that is another thing. I sincerely wish the House would take
it up and consider it without any great delay.
Mr. CLARK.--I hope my colleague will do me the justice to believe that
I have not made this motion from hostility to his resolution. With a
small modification, I am decidedly for it. I assure him it did not
require the remarks he has made to-day, to show the insufficiency of
the present system. Of that I had satisfactory proof the last year. But
I doubt whether the resolution, in its present state, is correct. I do
hope that my colleague will give it a little more consideration, and I
assure him I shall be happy to harmonize with him. In the decision by a
mere majority, the scales of justice are so near an equilibrium, that it
is doubtful often to which side justice inclines. I, therefore, think
there ought to be some modification of the principle contained in the
resolution. But I principally wish the postponement to prevail, that the
House may act on resolutions which I conceive all-important to the whole
country, and peculiarly so to that part of the community represented by
my colleague and myself. Every day’s delay increases the difficulty and
urges on the ruin that menaces them. It is well known that there is not
the best harmony between the merchants and planters. It is at all times
the interest of the former to buy produce as cheap as they can, and never
was there a better scheme for speculation to them than that furnished by
the resolutions on our table. How easy it is for them to convince the
planter that there will be a suppression of intercourse, and that his
produce will be soon worth nothing. These are the effects that I wish to
prevent. My colleague will do me the justice to believe that I have had
no hand in the procrastination. I have offered no project. With regard to
the proposed amendment to the constitution, I repeat it, I am in favor of
it, with a small modification. Nor do I wish it postponed for any great
length of time. I have no idea of leaving that to be done by our children
which we ought to do ourselves.
Mr. FINDLAY said he was against the indefinite postponement of the
subject, though in favor of its being postponed a short time. He thought
it was a subject which ought to be fully investigated. He was decidedly
in favor of the object of the resolution, but in a different form.
Mr. CONRAD was in favor of the indefinite postponement of the resolution.
He did not think the subject ought to be acted upon at this session. He
was not unfriendly to the principle, but he never could consent that a
bare majority of Congress should have the power to remove a judge. If the
amendment was so framed as to give the President a discretionary power
to remove a judge on the address of a majority of the two Houses, and to
make the removal imperative on the vote of two-thirds, he might be for
it. At any rate he thought it best to postpone the subject until the next
session.
Mr. J. RANDOLPH.--I am as anxious as any man for a decision of the
question implicated in several of the resolutions laid on our table, and
for a good reason. My tobacco is unsold. I feel the full force of the
observations of my colleague. I know that these resolutions have already
given rise to much nefarious speculation. When I called for information,
I had no idea of the time it would take to get it; and had I been
apprised of it, I do not know whether I should not have preferred acting
in the dark to waiting for it.
There is another reason why I wish this subject (amendment to the
constitution) taken up at this session. When I offered this resolution
at the last session, it was said to be too near the close of the session
to act upon it--this was acknowledged. But, it was said, print it and
let it go abroad. This has been done. But the reason for which I wish
it acted upon this session is, that the elections intervene between
this and the next session. Gentlemen may say what they please of the
principle of _quamdiu bene se gesserit_, but I believe if the members of
this House held their seats for seven years, their conduct would not be
the same as it is under the present tenure. I wish to recur to that good
old principle that sends the Representative back to render an account of
his actions to his constituents. After the next election gentlemen will
obtain credit for two years more of good behavior. I believe my friend
from Virginia will allow this to be a good reason against a postponement.
As gentlemen have stated the substance of the resolution as a reason
for its postponement, I will state its substance as a reason for not
postponing it. One gentleman says he will not consent that the judges
shall hold their offices subject to the will of a bare majority of
the two Houses. But does not every thing of importance depend on that
majority? Do they not appropriate millions? Do they not hold the purse
and the sword? Or do gentlemen think the woolsack more important? This
is most indubitably the case; and I wish to hear any reasoning against
giving efficiency to the will of a majority that does not approximate
the doctrine of the Polish veto. There can be no reason for this
distinction. And, so far from there being danger of this power being
abused, the experience of all Governments holds me out in saying that
there is greater danger that the power will not be exercised than that it
will be abused. For this plain reason: it would require some overt act
of notorious misconduct, or an equally notorious imbecility of mind or
body, to justify any man in giving such a vote. It is a point of extreme
delicacy to give it; and though some men might, I trust a majority of
both branches never would give such a vote for light and frivolous
reasons. But it may be thought that, as in all free Governments there
are parties, a triumphant party would turn out the judges to get into
their places. This would be a most humiliating effect. But on what is
the probability of such an effect founded? How are the turners out to be
turned in? Have they the power to appoint themselves to office? No. And
from our experience heretofore, no such inference can be drawn. There
is no probability of one triumphant faction putting down another to get
their offices. Because a triumphant faction could not rise to power but
at the will of a majority; and although they might take offices away from
others, they could not bestow them upon themselves. But suppose they did?
It would be for the first and last time. It would be a struggle between
office-hunters and the people; and I believe all the experience we have
heretofore had shows that this description of men are too prone to union
for the public to sustain either profit or loss from their divisions.
But if in this opinion I am in error, I would recur back to my first
principle to support me. Is the power to remove a judge more important
than the power of declaring war, of laying taxes, and of effecting
various other national objects? This is a doctrine to me totally
unintelligible.
Mr. SMILIE observed that he regretted that the motion for an indefinite
postponement had been made, as it was equivalent to a rejection of the
resolution.
The question was then taken, by yeas and nays, on an indefinite
postponement, and passed in the negative--yeas 42, nays 81, as follows:
YEAS.--Willis Alston, jun., Barnabas Bidwell, Phanuel Bishop,
James M. Broom, Martin Chittenden, Frederick Conrad, Orchard
Cook, Richard Cutts, Samuel W. Dana, Ezra Darby, John
Davenport, jun., Peter Early, Caleb Ellis, Ebenezer Elmer,
William Ely, James Fisk, Seth Hastings, William Helms, David
Hough, Joseph Levis, jun., Henry W. Livingston, Josiah Masters,
Jonathan O. Mosely, Gurdon S. Mumford, Jeremiah Nelson, Timothy
Pitkin, jun., John Pugh, Josiah Quincy, Martin G. Schuneman,
John Cotton Smith, William Stedman, Lewis B. Sturges, Samuel
Taggart, Benjamin Tallmadge, Samuel Tenney, Thomas W.
Thompson, Killian K. Van Rensselaer, Joseph B. Varnum, Daniel
C. Verplanck, Peleg Wadsworth, Eliphalet Wickes, and Nathan
Williams.
NAYS.--Evan Alexander, Isaac Anderson, David Bard, Joseph
Barker, Burwell Bassett, George M. Bedinger, William
Blackledge, John Blake, jun., Thomas Blount, Robert Brown, John
Boyle, William Butler, George W. Campbell, John Campbell, Levi
Casey, John Chandler, John Claiborne, Christopher Clark, Joseph
Clay, Matthew Clay, George Clinton, jun., Jacob Crowninshield,
John Dawson, William Dickson, Elias Earle, James Elliot, John
W. Eppes, William Findlay, John Fowler, James M. Garnett,
Peterson Goodwyn, Andrew Gregg, Isaiah L. Green, Silas Halsey,
John Hamilton, David Holmes, John G. Jackson, Walter Jones,
Thomas Kenan, Michael Leib, Matthew Lyon, Duncan McFarland,
Patrick Magruder, Robert Marion, William McCreery, David
Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow,
John Morrow, Thomas Newton, jun., Joseph H. Nicholson,
Gideon Olin, John Randolph, Thomas M. Randolph, John Rea
of Pennsylvania, John Rhea of Tennessee, Jacob Richards,
John Russell, Peter Sailly, Thomas Sammons, Thomas Sanford,
Ebenezer Seaver, James Sloan, John Smilie, John Smith, Samuel
Smith, Henry Southard, Thomas Spalding, Richard Stanford,
Joseph Stanton, David Thomas, Uri Tracy, Matthew Walton, John
Whitehill, Robert Whitehill, David R. Williams, Marmaduke
Williams, Alexander Wilson, Richard Wynn, and Thomas Wynns.
Mr. CLARK then varied his motion so as to postpone the resolution to the
second Monday in March--varied to next Monday, and carried.
_Exclusion of Contractors from Seats in the House--Prohibition of
Plurality of Offices--Disjunction of Military and Naval with Civil
Appointments._
Mr. J. RANDOLPH.--I beg leave to submit a motion to the House--a very
important motion--which at present I only mean to lay on the table. The
Constitution of the United States has provided that no person holding
an office under the Government of the United States shall be capable
of holding a seat in either House of Congress. But as the best things
are liable to corruption, and as we are told the corruption of the best
things is always the worst, so the Constitution of the United States
has received in practice a construction which in my judgment the text
never did and does not warrant, but which, if warranted by the text,
is totally repugnant to the spirit of that instrument, which, composed
of the jarring interests of the different States, and settled on the
basis of compromise, gave birth to a Government of responsibility,
without influence, without patronage, without abuse, without privileges,
attached to any individual, class, or order of men. It could not have
been the object of such an instrument, that while a man holding an
office not exceeding the value of fifty dollars, should be excluded
from a seat in this House, a contractor living on the fat of the land
should be capable under the constitution of holding one. Look through
the whole of the constitution, and say where such a privilege is to be
found. You find there the single principle of republicanism, that he
who has the influence derived from power and money shall not have a
place in the council of the nation--that placemen and pensioners shall
not come on this floor. While this principle scrupulously excludes men
holding responsible offices--men known to the whole world--shall it be
considered as permitting contractors to creep in through the crevices of
the constitution, and devour the goods of the people? Such a departure
from the spirit, if not from the letter of the constitution--such a
gross evasion of principle--calls aloud for remedy. Can a man who holds
a contract for fifty or a hundred thousand dollars give an independent
vote on this floor? If so, why not admit the Chief Justice and other high
officers under the Government to a seat here? Is it for any other reason,
but that the constitution will not permit the influence derived from
office to operate here?
The constitution may be tried by another test. It was made for the good
of the people under it, and not for those who administer it. It was never
intended to be made a job of, and I hope it never will be suffered by the
people to be made a job of. I think it is contrary to the tenor of the
constitution to hold a plurality of office. We some time since received a
petition from a learned institution to exempt books imported by them from
duty. What did we say on that occasion? We said, no; we cannot exempt
your books from duty. All must conform to the laws. There is no man too
high or too low for them. The same measure must be meted to all. To my
extreme surprise, I see a practice even more repugnant to the spirit of
the constitution than a contractor sitting in Congress; and that is, a
union of civil and military authority in one person--a union more fatal
to a free nation than the union of Executive, Legislative, and Judicial
powers.
Having made these remarks, Mr. R. offered the following resolutions,
which were referred to a Committee of the whole House on Tuesday next:--
“Whereas it is provided by the sixth section of the first
article of the Constitution of the United States, that ‘no
person holding any office under the United States shall be a
member of either House of Congress during his continuance in
office;’ therefore,
“1. _Resolved_, That a contractor under the Government of the
United States is an officer within the purview and meaning of
the constitution, and, as such, is incapable of holding a seat
in this House.
“2. _Resolved_, That the union of a plurality of offices in
the person of a single individual, but more especially of the
military with the civil authority, is repugnant to the spirit
of the Constitution of the United States, and tends to the
introducing of an arbitrary government.
“3. _Resolved_, That provision ought to be made by law to
render any officer in the Army or Navy of the United States
incapable of holding any civil office under the United States.”
THURSDAY, February 27.
_Importation of Slaves._
An engrossed bill for imposing a tax of ten dollars on all slaves
hereafter imported into the United States was read the third time.
A motion was made, and the question being put, that the farther
consideration of the said bill be postponed indefinitely, it passed in
the negative--yeas 42, nays 69.
On motion,
_Ordered_, That the said bill be recommitted to Mr. SLOAN, Mr. FISK,
Mr. EPPES, Mr. QUINCY, Mr. J. C. SMITH, Mr. J. CLAY, and Mr. MARION.
_Prize Money._
CAPTAIN LANDAIS.
A bill for the relief of Peter Landais was read a first, second, and
third time, and passed. The petitioner claimed prize money due him in
1799; his claim was upward of $12,000.
Mr. SMITH, who reported the bill, stated that he believed the petitioner
at present wished but a part of the sum due him; and he would thank any
gentleman to name a sum with which to fill the blank.
Mr. NICHOLSON gave a very affecting statement of the petitioner’s
situation, and moved to fill the blank with $6,000. It was so filled
without a dissentient voice.
WEDNESDAY, March 5.
_Chesapeake and Delaware Canal._
Mr. GREGG, from the committee to whom was referred, on the twenty-eighth
of January last, the petition of the President and Directors of the
Chesapeake and Delaware Canal Company, made the following report:
That it appears a company has been incorporated by the
respective States of Pennsylvania, Maryland, and Delaware, for
the purpose of forming a navigable canal over the isthmus,
which separates the bays of Chesapeake and Delaware: that in
pursuance of the several acts of incorporation, passed by the
said States, respectively, a large number of subscriptions
were made by divers citizens of the United States, and a board
of president and directors were duly elected for carrying the
project into effect.
That the said president and directors, in pursuance of their
appointment, have procured skilful engineers, to explore and
survey the ground across the aforesaid isthmus, and have
fixed on a route or position for the canal, calculated, as
they conceive, in every respect to secure the great and
important purpose of an uninterrupted navigation, and have
made considerable progress in the work. They find, however,
that to accomplish it, a greater portion of fortitude and
perseverance, and more ample resources will be necessary,
than the individuals who are embarked in it can be supposed
to possess. The importance of the undertaking and the immense
national advantages which may ultimately result from it, they
hope will be sufficient inducements to prevail on Congress to
grant them such assistance as will enable them to complete the
business agreeably to their original plan.
The committee cannot hesitate a moment in deciding on the
importance and extensive utility of connecting the waters of
the Chesapeake and Delaware by a navigable canal. To adopt a
phrase familiarized by use, they consider the project as an
opening wedge for an extensive inland navigation, which would
at all times be of an immense advantage to the commercial,
as well as to the agricultural and manufacturing part of the
community. But in the event of a war, its advantages would be
incalculable. The reasoning of the petitioners is conclusive
on this point. If arguments are necessary, their petition
furnishes an ample supply to prove, that no system of internal
improvement which has yet been proposed in this country,
holds out the prospect of such important national advantages,
as naturally result from a successful termination of their
undertaking.
Did the finances of the country admit of it, the committee
would feel a perfect freedom in recommending to the House the
propriety, in their opinion, of extending to the petitioners
such aid as the difficulty and importance of their enterprise
would be thought to justify. But it is a question, whether,
at this moment, the state of the treasury would admit of
any pecuniary assistance being granted. The amount of the
public debt, yet to be extinguished, the embarrassed state of
our commerce, and the critical situation of the country in
relation to foreign Governments, might perhaps be considered
as insurmountable objections against applying any public money
to internal improvements, at this particular time. Under an
impression arising from these circumstances, the committee
recommend the following resolution:
_Resolved_, That it would not be expedient, at this time, to
grant any pecuniary assistance to the President and Directors
of the Chesapeake and Delaware Canal Company.
The report was referred to a Committee of the Whole on Monday.
_Importations from Great Britain._
The House then, on the motion of Mr. GREGG, resolved itself into a
Committee of the Whole on the state of the Union--ayes 72.
Mr. GREGG moved that the committee should take into consideration a
resolution, offered by him, on the 29th of January, for a non-importation
of British goods.
The committee having agreed to take up the resolution, and it having been
read from the Chair, in the following words:
“Whereas Great Britain impresses citizens of the United States,
and compels them to serve on board her ships of war, and also
seizes and condemns vessels belonging to citizens of the United
States, and their cargoes, being the _bona fide_ property of
American citizens, not contraband of war, and not proceeding to
places besieged or blockaded, under the pretext of their being
engaged in time of war in a trade with her enemies, which was
not allowed in time of peace;
“And whereas the Government of the United States has repeatedly
remonstrated to the British Government against these injuries,
and demanded satisfaction therefor, but without effect:
Therefore,
“_Resolved_, That, until equitable and satisfactory
arrangements on these points shall be made between the two
Governments, it is expedient that, from and after the ---- day
of ---- next, no goods, wares, or merchandise, of the growth,
product or manufacture of Great Britain, or of any of the
colonies or dependencies thereof, ought to be imported into the
United States; provided, however, that whenever arrangements
deemed satisfactory by the President of the United States shall
take place, it shall be lawful for him by proclamation to fix a
day on which the prohibition aforesaid shall cease.”
Mr. J. CLAY inquired whether it would not be in order to call up a
resolution offered by him on the same subject.
The CHAIRMAN said it was not in order, after the committee had determined
to consider the resolution just read.
Mr. GREGG then rose, and said: Mr. Chairman, I cannot but congratulate
the committee on our having at length taken up the business to which
I believe the people of this country universally expected we would
have turned our attention on the first moment of assembling in our
legislative capacity. Before we left our homes, we had learned, through
the channel of newspapers, that outrages of a most atrocious kind had
been committed on the persons and property of American citizens, by
some of the belligerent nations of Europe. This intelligence has been
officially confirmed by sundry communications which we have received from
the President of the United States. From these sources we have derived
the information that irruptions have been made into our territory, on
its southern frontier, by subjects of Spain, and that depredations to
a very considerable extent have been committed on our commerce by the
cruisers of that nation. The manly spirit with which these irruptions
were resisted by the officers of our Government appears, for the present,
to have checked the further progress of that evil; and it seems that the
system of depredation has been discontinued, in pursuance of instructions
issued by the Minister of State and of Marine to the Director General of
the Fleet. These orders were issued on the 3d day of September, 1805, and
are understood to have been produced by the remonstrances of our Minister
at that Court. From these favorable symptoms, a presumption naturally and
necessarily arises that an amicable adjustment of the points in dispute
between that Government and ours is not to be despaired of. Should we,
however, be deceived in this calculation--should similar aggressions be
repeated--we are not destitute of means to obtain redress; and on such an
event taking place, I presume we would not hesitate in resorting to the
complete exercise of these means.
I wish the prospect of an accommodation of our differences with Great
Britain were equally bright and flattering. But the systematic hostility
of that Government towards our commerce, and its obstinate perseverance
in the impressment of our seamen, notwithstanding the repeated
remonstrances of our ministers, leave no room to expect an accommodation
until we resort to such measures as will make her feel our importance to
her as the purchasers and consumers of her manufactures, and the great
injury she will sustain through a total privation of our friendship.
In searching for materials to substantiate the facts stated in the
preamble to the resolution, it is only necessary to refer to the history
of the conduct of the British Government towards us for a very short
period. By turning a few pages of that history we will find that a
large number of our fellow-citizens have been forcibly taken from their
homes--for his ship is a seaman’s home--have been put on board British
ships of war and compelled to fight her battles against a power between
whom and her own Government there exists no difference. The general
notoriety of this truth precludes the necessity of a reference to any
particular document to prove the correctness of the statement. Was such
a reference necessary, I might point to a report from the Department
of State, made at the last session of Congress. In that report we find
that, at that time, fifteen hundred and thirty-eight persons, claiming
to be American citizens, had been able to extend their application for
relief to their own Government; and though Great Britain claimed some of
these as her subjects, agreeably to her doctrine of _non-expatriation_,
the great mass was acknowledged to be Americans, for whose detention no
other cause could be assigned but because she stood in need of their
service. And is it not a fair presumption that this number was but a
small proportion of those who were actually impressed? Changed from ship
to ship, and the vessels in which they are frequently changing their
station, and guarded with the most scrupulous attention, it is almost
impossible for them to find any opportunity of applying to their own
Government or any of its officers for relief.
This open, this flagrant violation of our rights as men, and as
citizens of an independent nation, certainly demands the interposition
of Government. To what cause are we to ascribe the neglect with which
these unfortunate men have been treated? A few years ago, when some of
our people had the misfortune to be made prisoners by the Algerines,
and at a later period, when some others fell into the hands of the
Tripolitans, the feelings of the Government and of the whole country
were alive. All voices united in requiring the energy of the Government
to be exerted, and its purse to be opened, so that no means to obtain
the liberty of the captives might be left untried. Success has crowned
these endeavors, and those who were unfortunately slaves are now enjoying
their freedom. In what respect, I would ask, does the situation of those
who have been impressed from on board their own vessels, and who are
forcibly detained on board British ships of war, differ from that of the
Algerine and Tripolitan prisoners? So far as respects the Government, the
infringements of its rights are greater in the former than in the latter
case. The situation of the individual is no better. A wound inflicted
by a British cat-of-nine-tails is not less severely felt than if it had
proceeded from the lash of an Algerine. The patient submission with which
we have so long endured this flagrant outrage on the feelings of humanity
and on the honor of our country, must have excited the astonishment of
the whole world; but it must also have impressed them very forcibly
with an idea of the moderation of our Government, and of its strong
predilection for peace. I trust, however, we will now show them that
there is a point beyond which we will not suffer; that even although we
may not think it advisable to make reprisals, we will at least withdraw
our friendly intercourse from that Government, whose whole system of
conduct towards us has been that of distress and degradation; and that,
as the business is now taken up, it will be pursued with zeal and ardor,
until relief is extended to this unhappy class of sufferers, and security
obtained against similar aggressions on their persons in future, by such
arrangements as ought to be deemed satisfactory.
In relation to the capture and condemnation of our vessels, contrary
to what we consider, and to what I verily believe to be the law of
nations, I shall not detain the committee with many observations. I have
no intention of entering into a discussion of the abstract question,
whether a trade is justifiable in war which is not open in time of peace.
I will only observe, that on the principles of reason and justice, and
from such authors as I have had an opportunity of consulting, the right
for which we contend does appear to me to be clearly established. In
some late publications, this question has received a very luminous and
ample discussion, and the right insisted on by us has been placed on
such ground, and supported by reasoning so clear, so cogent, and so
conclusive, that Great Britain, with all her boasted talents, will find
it extremely difficult to find answers for them.
But even admitting the British doctrine to be correct, what, I would ask,
has been the conduct of that Government under it? Has it been that of
a nation actuated by motives of liberality and friendship? Has it been
that of a civilized and polished nation? Has it been such as justice and
the fair and honorable conduct of our Government has given us a right to
expect? No person, I think, is prepared to answer in the affirmative.
It does not appear that the principle was practised on during the last,
nor for some time after the commencement of the present war. I will not
undertake absolutely to say that they relinquished it, but the trade
which it now prohibits was permitted to be carried on to a great extent
without any interruption from their cruisers. Numbers, allured by the
prospect of gain, were induced to engage in the profitable business, and
supposing themselves safe under the protection of law, had their vessels
and effects seized to a large amount. The capture and condemnation of
their property was to them the first promulgation of the law. Ignorance
of what it was impossible for them to know, was imputed to them as
a crime, and an honorable dependence on the justice of a Government
professing to be friendly, was prosecuted with penalty and forfeiture.
But even independent of our just cause of complaint arising from this
principle, apparently new, thus unjustly brought into operation, how
has that Government conducted in relation to captures, in which, after
the most minute investigation, all the ingenuity of her courts have not
been able to discover any principle to warrant the condemnation? The
perplexing difficulties, the vexatious delays, and the enormous expense
attending the prosecution of a claim through every stage of its progress,
place an almost insurmountable barrier in the way of obtaining justice.
In fact, all her commercial maxims, and the whole system of her conduct,
discover a manifest intention, a fixed determination, to consummate the
ruin of the commerce of this country.
From this very brief view of the conduct of the British Government
towards us, and I have confined it merely to the points stated in the
preamble to the resolution; every candid, every unprejudiced person,
I think, must acknowledge, that we are arrived at a crisis; that we
have reached a period at which the honor, the interest, and the public
sentiment of the country, so far as it has been expressed, call loudly
on us to make a stand. The evil we have already suffered is great, and
it is progressing. Like a cancerous complaint, it is penetrating still
deeper towards our vitals. While we yield year after year, Great Britain
advances step by step; yet a little longer and our commerce will be
annihilated, and our independence subverted.
Here the great difficulty presents itself. What are the proper steps to
be taken? what measures that we can adopt will be most likely to effect
the object we have in view, and in its operation produce the smallest
inconvenience to ourselves? I, sir, have reflected much on this subject.
I have considered, so far as I was capable, the bearing which every
measure which I have heard proposed would have on it. The result of
my reflections is, that, under all the circumstances of the case, the
resolution, which is now the subject of immediate discussion, ought to
be adopted. What is the resolution? what does it say? It addresses Great
Britain in this mild and moderate, though manly and firm language: You
have insulted the dignity of our country by impressing our seamen, and
compelling them to fight your battles against a power with whom we are at
peace. You have plundered us of much property by that predatory war which
you authorize to be carried on against our commerce. To these injuries,
insults, and oppression, we will submit no longer. We do not, however,
wish to destroy that friendly intercourse that ought to subsist between
nations, connected by the ties of common interest, to which several
considerations seem to give peculiar strength. The citizens of our
country and the subjects of yours, from the long habit of supplying their
mutual wants, no doubt feel a wish to preserve their intercourse without
interruption. To prevent such interruption, and secure against future
aggressions, we are now desirous of entering into such arrangements as
ought to be deemed satisfactory by both parties. But if you persist
in your hostile measures, if you absolutely refuse acceding to any
propositions of compromise, we must slacken those bonds of friendship by
which we have been connected, you must not expect hereafter to find us in
your market, purchasing your manufactures to so large an amount. What
will the people of this country say of this proposition? Will they not be
ready to exclaim, that it is too mild for the present state of things?
What will be the opinion of foreign Governments respecting it? Will they
not say that we have extended the principle of moderation too far? What
must be its impression on Great Britain herself? Sir, if she is not lost
to every sense of national justice, she must acknowledge its equity and
fairness. But I would inquire particularly what would be its operation
on the people of that country? If carried into effect, I believe it
will strike dismay throughout the Empire. Its operation will be felt by
every description of people, but more especially by the commercial and
manufacturing part of the community. The influence of these two classes
is well known in that country. They are the main pillars of its support.
They are the sources of its wealth. Their representations, therefore, are
always attended to. And what language must they speak on this occasion?
It must be evident that a regard to their own interest will lead them
to remonstrate loudly against that system which will produce an annual
defalcation in the sale of their manufactures, of thirty millions of
dollars. This is their vulnerable part. By attacking them in their
warehouses and workshops we can reach their vitals, and thus raise a set
of advocates in our favor, whose remonstrance may produce an abandonment
of those unjust principles and practices which have produced the solemn
crisis.
Mr. J. CLAY.--By the resolution before us we are prohibited from
importing from Great Britain any articles, however necessary or
convenient they may be; while, at the same time, we are permitted to
carry any articles to her market. The effect will be, that while our
productions are accumulating in the hands of the British manufacturers
and merchants, they will have no means of paying for them; and of
consequence debts to a very large amount will become due from British
merchants to American citizens. Even at the present day, I have great
doubts whether there are not greater sums due by the merchants of Great
Britain to the citizens of the United States than there are recoverable
debts due by American citizens to them. If so, what will become of the
second expedient proposed to be resorted to by my colleague, that of
sequestration? The balance of injury, instead of being in our favor,
will be against us. If my colleague had looked over the report of the
Secretary of the Treasury, and had attended to the amount of American
property afloat, he would have seen that there is not less than one
hundred millions of dollars worth of American property at the mercy of
the cruisers of Britain. I believe that the naked vessels, independent
of the products they carry, amount in value to more than thirty millions
of dollars. It will be seen that the commerce of the United States in
exports and imports amounts to one hundred and fifty millions, of
which it is fair to calculate that one-third is constantly exposed on
the ocean. Of this amount about forty millions is carried on between
the United States and the power to whom it is proposed to cut off
intercourse. With this fact staring us in the face, would it be politic
to expose so much property to the retaliation of the British Ministry?
When the gentleman spoke of the amount of British depredations, he ought
to have stated the amount of those recently committed. I believe I am not
very wrong in stating the whole amount of American property detained by
British cruisers as not exceeding six millions of dollars. On balancing,
therefore, their interests, ought the United States to resort to measures
of hostility; to measures which, in the opinion of every man, will
justify retaliation?
Mr. CROWNINSHIELD.--The gentleman from Pennsylvania, who has last spoken,
regrets that this subject has been taken up so soon, but I regret it
has not been taken up at an earlier period. Although, after I found
certain information called for, I moved for other documents, calculated
to shed further light on the subject, yet I then said, and I am still
convinced that this information could not influence my decision on the
subject under consideration. The documents called for are, however, now
before us, and it appears that the balance of trade between the United
States and Great Britain is from eleven to twelve millions against us.
This difference we are obliged to make up by remittances in cash or
bills from other countries; when, if we did not purchase of her more
than we sell to her, we should not owe this annual balance, and the
amount would surely be returned to the United States, very probably
in cash, as a balance in our favor from other European nations. The
trade, therefore, with Great Britain, so far as relates to the balance,
is disadvantageous to us. The gentleman from Pennsylvania (Mr. CLAY)
thinks that this resolution will materially injure us, while it will
inflict little injury on Great Britain. But there can be no doubt the
measure it contemplates will injure Great Britain vastly more than it
will injure us. Great Britain has, without any cause whatever, condemned
our vessels engaged in the carriage of colonial productions, the _bona
fide_ property of American citizens. The gentleman has acknowledged that
these captures may amount to six millions of dollars. I do not know the
amount, but if the adjudications continue, I believe it will soon exceed
that sum. But if the amount did not exceed one million, we are bound in
duty to protect our merchants. The gentleman, in his remarks, goes on the
calculation that Great Britain will go to war with us if we adopt this
resolution. But I have no such idea. If, however, I held that opinion,
I should not on that account withhold my approbation from it. Because I
believe if a war should take place, the United States will have a great
advantage over Great Britain. We should be able, in that event, to fit
out a great number of privateers, and we should make two captures to
their one. If a war should take place, which I do not hesitate to say I
should greatly deprecate, we should take twice as much of their property
as they would take of ours. But we are not, by the adoption of this
resolution, about to enter into war with Great Britain. No such thing is
in the contemplation of any gentleman. We are merely about to prohibit
the importation of British goods in consequence of her having seized our
vessels engaged in carrying on a lawful commerce, and in consequence of
her seizure of American citizens protected by the American flag.
In November, 1793, Great Britain adopted a similar principle with regard
to the colonial trade, except that the orders issued at that time went
further than the present principle. In consequence of these orders four
or five hundred of our vessels were seized. Every one knows the conduct
of the American Government at that time. A treaty was finally made in
which Great Britain promised to pay for the aggressions committed by
her vessels on neutral rights. But nearly ten years elapsed before our
merchants received compensation for their losses. This principle slept
till 1801. Great Britain did not find it convenient to call it again
into existence before that time. It then appears by a correspondence
between Mr. King, then our Minister at the Court of Great Britain,
and Lord Hawkesbury, that she attempted to renew it at this time. Mr.
King, however, remonstrated; and he finally received a note from Lord
Hawkesbury who had referred the subject to the Attorney-General of
Great Britain, admitting that the seizure, under this principle, was
not warrantable. The opinion is this: that the neutral has a right to
carry on a commerce with the enemies’ colonies. That the continuity of
the voyage is broken when the return cargo is landed in the neutral
country, and has paid duties there, and that the goods can afterwards
be safely transported to any belligerent country in Europe, in the same
bottom on which they were originally imported, or on any other neutral
bottom whatever. This appears to have settled the question, and numerous
decisions in England both before and since that time have confirmed the
principle as a correct one.
As to the impressment of our seamen, that too is a subject of most
serious complaint. We have called for a document on this point, which
unfortunately is not yet on our tables. It is so extensive, and the
information drawn from such various sources, that the Secretary of State
has not yet been able to present it. We have, however, understood, that
the number of our impressed seamen amounts to above 3,000. During the
last war Great Britain impressed upwards of 2,000 of our seamen, of
which she restored 1,200, proved to be American, and 800 remained in
her possession at the peace. In the short period of two years she has
impressed 3,000 seamen. I believe that we are bound, by all peaceable
means, to obtain the liberation of these men. Lately, one of our
frigates was shipwrecked off Tripoli, and 300 men taken captives. We
immediately passed a new appropriation bill, and sent out several
additional frigates. The affair has terminated honorably to our country,
and our seamen are released. Will we not now do as much for 3,000 seamen,
as we then did for 300, which are but a tenth part?
Mr. J. RANDOLPH.--I am extremely afraid, sir, that so far as it may
depend on my acquaintance with details connected with the subject, I
have very little right to address you, for in truth, I have not yet seen
the documents from the Treasury, which were called for some time ago, to
direct the judgment of this House in the decision of the question now
before you; and, indeed, after what I have this day heard, I no longer
require that document or any other document--indeed, I do not know that I
ever should have required it--to vote on the resolution of the gentleman
from Pennsylvania. If I had entertained any doubts, they would have been
removed by the style in which the friends of the resolution have this
morning discussed it. I am perfectly aware, that on entering upon this
subject, we go into it manacled, handcuffed, and tongue-tied; gentlemen
know that our lips are sealed on subjects of momentous foreign relations,
which are indissolubly linked with the present question, and which
would serve to throw a great light on it in every respect relevant to
it. I will, however, endeavor to hobble over the subject, as well as my
fettered limbs and palsied tongue will enable me to do it.
I am not surprised to hear this resolution discussed by its friends as
a war measure. They say (it is true) that it is not a war measure; but
they defend it on principles which would justify none but war measures,
and seem pleased with the idea that it may prove the forerunner of war.
If war is necessary--if we have reached this point--let us have war. But
while I have life, I will never consent to these incipient war measures,
which, in their commencement, breathe nothing but peace, though they
plunge at last into war. It has been well observed by the gentleman
from Pennsylvania behind me (Mr. J. CLAY), that the situation of this
nation in 1793 was in every respect different from that in which it
finds itself in 1806. Let me ask, too, if the situation of England is
not since materially changed? Gentlemen who, it would appear from their
language, have not got beyond the horn-book of politics, talk of our
ability to cope with the British navy, and tell us of the war of our
Revolution. What was the situation of Great Britain then? She was then
contending for the empire of the British channel, barely able to maintain
a doubtful equality with her enemies, over whom she never gained the
superiority until Rodney’s victory of the twelfth of April. What is her
present situation? The combined fleets of France, Spain, and Holland,
are dissipated, they no longer exist. I am not surprised to hear men
advocate these wild opinions, to see them goaded on by a spirit of
mercantile avarice, straining their feeble strength to excite the nation
to war, when they have reached this stage of infatuation, that we are
an over-match for Great Britain on the ocean. It is mere waste of time
to reason with such persons. They do not deserve any thing like serious
refutation. The proper arguments for such statesmen are a straight
waistcoat, a dark room, water gruel, and depletion.
It has always appeared to me that there are three points to be
considered, and maturely considered, before we can be prepared to vote
for the resolution of the gentleman from Pennsylvania: First. Our ability
to contend with Great Britain for the question in dispute: Secondly. The
policy of such a contest: Thirdly. In case both these shall be settled
affirmatively, the manner in which we can, with the greatest effect,
react upon and annoy our adversary.
Now the gentleman from Massachusetts (Mr. CROWNINSHIELD) has settled
at a single sweep, to use one of his favorite expressions, not only
that we are capable of contending with Great Britain on the ocean, but
that we are actually her superior. Whence does the gentleman deduce
this inference? Because, truly, at that time when Great Britain was
not mistress of the ocean, when a North was her prime minister, a
Sandwich the first lord of her admiralty, when she was governed by a
counting-house administration, privateers of this country trespassed
on her commerce! So, too, did the cruisers of Dunkirk; at that day
Suffrein held the mastery of the Indian seas. But what is the case now?
Do gentlemen remember the capture of Cornwallis on land, because De
Grasse maintained the dominion of the ocean? To my mind no position is
more clear, than that if we go to war with Great Britain, Charleston
and Boston, the Chesapeake and the Hudson, will be invested by British
squadrons. Will you call on the Count de Grasse to relieve them, or shall
we apply to Admiral Gravina, or Admiral Villeneuve to raise the blockade?
But you have not only a prospect of gathering glory, and what seems to
the gentleman from Massachusetts much dearer, profit, by privateering,
but you will be able to make a conquest of Canada and Nova Scotia.
Indeed! Then, sir, we shall catch a Tartar. I confess, however, I have no
desire to see the Senators and Representatives of the Canadian French,
or of the tories and refugees of Nova Scotia, sitting on this floor or
that of the other House--to see them becoming members of the Union,
and participating equally in our political rights. And on what other
principle would the gentleman from Massachusetts be for incorporating
those provinces with us? Or on what other principle could it be done
under the constitution? If the gentleman has no other bounty to offer us
for going to war, than the incorporation of Canada and Nova Scotia with
the United States, I am for remaining at peace.
What is the question in dispute? The carrying trade. What part of
it? The fair, the honest, and the useful trade that is engaged in
carrying our own productions to foreign markets, and bringing back their
productions in exchange? No, sir. It is that carrying trade which covers
enemy’s property, and carries the coffee, the sugar, and other West India
products, to the mother country. No, sir, if this great agricultural
nation is to be governed by Salem and Boston, New York and Philadelphia,
and Baltimore and Norfolk and Charleston, let gentlemen come out and say
so; and let a committee of public safety be appointed from those towns to
carry on the Government. I, for one, will not mortgage my property and my
liberty, to carry on this trade. The nation said so seven years ago--I
said so then, and I say so now. It is not for the honest carrying trade
of America, but for this mushroom, this fungus of war--for a trade which,
as soon as the nations of Europe are at peace, will no longer exist,--it
is for this that the spirit of avaricious traffic would plunge us into
war.
I am forcibly struck on this occasion by the recollection of a remark
made by one of the ablest (if not the honestest) Ministers that England
ever produced. I mean Sir Robert Walpole, who said that the country
gentlemen (poor meek souls!) came up every year to be sheared--that they
lay mute and patient whilst their fleeces were taking off--but that if he
touched a single bristle of the commercial interest, the whole stye was
in an uproar. It was indeed shearing the hog--“great cry and little wool.”
But we are asked, are we willing to bend the neck to England; to submit
to her outrages? No, sir, I answer, that it will be time enough for us
to vindicate the violation of our flag on the ocean, when they shall
have told us what they have done in resentment of the violation of the
actual territory of the United States by Spain--the true territory of
the United States, not your new-fangled country over the Mississippi,
but the good old United States--part of Georgia, of the old thirteen
States--where citizens have been taken, not from our ships, but from our
actual territory. When gentlemen have taken the padlock from our mouths,
I shall be ready to tell them what I will do, relative to our dispute
with Britain, on the law of nations, on contraband, and such stuff.
I have another objection to this course of proceeding. Great Britain,
when she sees it, will say the American people have great cause of
dissatisfaction with Spain. She will see by the documents furnished by
the President, that Spain has outraged our Territory, pirated upon our
commerce, and imprisoned our citizens; and she will inquire what we have
done? It is true, she will receive no answer, but she must know what we
have not done. She will see that we have not repelled these outrages, nor
made any addition to our army and navy--nor even classed the militia. No,
sir, not one of your militia generals in politics has marshalled a single
brigade.
Although I have said it would be time enough to answer the question which
gentlemen have put to me when they shall have answered mine, yet as I
do not like long prorogations I will give them an answer now. I will
never consent to go to war for that which I cannot protect. I deem it no
sacrifice of dignity to say to the Leviathan of the deep--we are unable
to contend with you in your own element, but if you come within our
actual limits we will shed our last drop of blood in their defence. In
such an event I would feel, not reason, and obey an impulse which never
has, which never can deceive me.
France is at war with England--suppose her power on the continent of
Europe no greater than it is on the ocean. How would she make her enemy
feel it? There would be a perfect non-conductor between them. So with
the United States and England--she scarcely presents to us a vulnerable
point. Her commerce is now carried on for the most part in fleets--where
in single ships they are stout and well armed--very different from the
state of her trade during the American war, when her merchantmen became
the prey of paltry privateers. Great Britain has been too long at war
with the three most powerful maritime nations of Europe not to have
learnt how to protect her trade. She can afford convoy to it all--she
has eight hundred ships in commission, the navies of her enemies are
annihilated. Thus this war has presented the new and curious political
spectacle of a regular annual increase (and to an immense amount) of her
imports and exports, and tonnage and revenue, and all the insignia of
accumulating wealth, whilst in every former war, without exception, these
have suffered a greater or less diminution. And wherefore? Because she
has driven France, Spain, and Holland from the ocean. Their marine is
no more. I verily believe that ten English ships-of-the-line would not
decline a meeting with the combined fleets of those nations. I forewarn
the gentleman from Massachusetts and his constituents of Salem, that all
their golden hopes are vain. I forewarn them of the exposure of their
trade beyond the Cape of Good Hope (or now doubling it) to capture and
confiscation--of their unprotected seaport towns, exposed to contribution
or bombardment. Are we to be legislated into war by a set of men, who in
six weeks after its commencement may be compelled to take refuge with us
up in the country? And for what? A mere fungus--a mushroom production of
war in Europe, which will disappear with the first return of peace--an
unfair trade. For is there a man so credulous as to believe that we
possess a capital not only equal to what may be called our own proper
trade, but large enough also to transmit to the respective parent states
the vast and wealthy products of the French, Spanish and Dutch colonies?
It is beyond the belief of any rational being. But this is not my only
objection to entering upon this naval warfare; I am averse to a naval war
with any nation whatever. I was opposed to the naval war of the last
Administration, and I am as ready to oppose a naval war of the present
Administration, should they meditate such a measure. What! shall this
great mammoth of the American forest leave his native element and plunge
into the water in a mad contest with the shark? Let him beware that his
proboscis is not bitten off in the engagement. Let him stay on shore, and
not be excited by the muscles and periwinkles on the strand, or political
bears, in a boat to venture on the perils of the deep. Gentlemen say,
will you not protect your violated rights? and I say, why take to water,
where you can neither fight nor swim? Look at France--see her vessels
stealing from port to port on her own coast--and remember that she is the
first military power of the earth, and as a naval people second only to
England. Take away the British navy, and France to-morrow is the tyrant
of the ocean.
This brings me to the second point. How far is it politic in the United
States to throw their weight into the scale of France at this moment,
from whatever motive--to aid the views of her gigantic ambition--to make
her mistress of the sea and land--to jeopardize the liberties of mankind?
Sir, you may help to crush Great Britain, you may assist in breaking
down her naval dominion, but you cannot succeed to it. The iron sceptre
of the ocean will pass into his hands who wears the iron crown of the
land. You may then expect a new code of maritime law. Where will you look
for redress? I can tell the gentleman from Massachusetts that there is
nothing in his rule of three that will save us, even although he should
outdo himself, and exceed the financial ingenuity which he so memorably
displayed on a recent occasion. No, sir, let the battle of Actium be
once fought, and the whole line of seacoast will be at the mercy of the
conqueror. The Atlantic, deep and wide as it is, will prove just as
good a barrier against his ambition, if directed against you, as the
Mediterranean to the power of the Cæsars. Do I mean (when I say so) to
crouch to the invader? No! I will meet him at the water’s edge, and fight
every inch of ground from thence to the mountains--from the mountains
to the Mississippi. But after tamely submitting to an outrage on your
domicil, will you bully and look big at an insult on your flag three
thousand miles off?
But, sir, I have yet a more cogent reason against going to war, for the
honor of the flag in the narrow seas, or any other maritime punctilio.
It springs from my attachment to the Government under which I live. I
declare, in the face of day, that this Government was not instituted
for the purposes of offensive war. No! It was framed (to use its own
language) “for the common defence and the general welfare,” which are
inconsistent with offensive war.[35] I call that offensive war, which
goes out of our jurisdiction and limits for the attainment or protection
of objects not within those limits, and that jurisdiction. As in 1798 I
was opposed to this species of warfare, because I believed it would raze
the constitution to its very foundation--so, in 1806, I am opposed to it,
and on the same grounds. No sooner do you put the constitution to this
use--to a test which it is by no means calculated to endure--than its
incompetency becomes manifest, apparent to all. I fear if you go into a
foreign war, for a circuitous, unfair carrying trade, you will come out
without your constitution. Have not you contractors enough yet in this
House? Or, do you want to be overrun and devoured by commissaries, and
all the vermin of contract? I fear, sir, that what are called “the energy
men” will rise up again--men who will burn the parchment. We shall be
told that our Government is too free; or, as they would say, weak and
inefficient. Much virtue, sir, in terms! That we must give the President
power to call forth the resources of the nation. That is, to filch the
last shilling from our pockets--to drain the last drop of blood from
our veins. I am against giving this power to any man, be he who he may.
The American people must either withhold this power, or resign their
liberties. There is no other alternative. Nothing but the most imperious
necessity will justify such a grant. And is there a powerful enemy at
our doors? You may begin with a First Consul. From that chrysalis state
he soon becomes an Emperor. You have your choice. It depends upon your
election whether you will be a free, happy, and united people at home, or
the light of your Executive Majesty shall beam across the Atlantic in one
general blaze of the public liberty.
For my part, I will never go to war but in self-defence. I have no
desire for conquests--no ambition to possess Nova Scotia. I hold the
liberties of this people at a higher rate. Much more am I indisposed to
war, when, among the first means for carrying it on, I see gentlemen
propose the confiscation of debts due by Government to individuals. Does
a _bona fide_ creditor know who holds his paper? Dare any honest man
ask himself the question? ’Tis hard to say whether such principles are
more detestably dishonest, than they are weak and foolish. What, sir,
will you go about with proposals for opening a loan in one hand, and
a sponge for the national debt in the other? If, on a late occasion,
you could not borrow at a less rate of interest than eight per cent.,
when the Government avowed that they would pay to the last shilling
of the public ability, at what price do you expect to raise money with
an avowal of these nefarious opinions? God help you, if these are
your ways and means for carrying on war! if your finances are in the
hands of such a Chancellor of the Exchequer. Because a man can take
an observation, and keep a log-book and a reckoning; can navigate a
cock-boat to the West Indies, or the East, shall he aspire to navigate
the great vessel of State--to stand at the helm of public councils? _Ne
sutor ultra crepidam._ What are you going to war for? For the carrying
trade? Already you possess seven-eighths of it. What is the object in
dispute? The fair, honest trade, that exchanges the product of our soil
for foreign articles for home consumption? Not at all. You are called
upon to sacrifice this necessary branch of your navigation, and the
great agricultural interest--whose handmaid it is--to jeopardize your
best interests for a circuitous commerce, for the fraudulent protection
of belligerent property under your neutral flag. Will you be goaded, by
the dreaming calculations of insatiate avarice, to stake your all for
the protection of this trade? I do not speak of the probable effects
of war on the price of our produce. Severely as we must feel, we may
scuffle through it. I speak of its reaction on the constitution. You
may go to war for this excrescence of the carrying trade, and make
peace at the expense of the constitution. Your Executive will lord it
over you, and you must make the best terms with the conqueror that
you can. But the gentleman from Pennsylvania (Mr. GREGG) tells you
that he is for acting in this, as in all things, uninfluenced by the
opinion of any minister whatever--foreign, or, I presume, domestic.
On this point I am willing to meet the gentleman--am unwilling to be
dictated to by any minister, at home or abroad. Is he willing to act
on the same independent footing? I have before protested, and I again
protest against secret, irresponsible, overruling influence. The first
question I asked when I saw the gentleman’s resolution, was, “Is this
a measure of the Cabinet?” Not of an open declared Cabinet; but, of an
invisible, inscrutable, unconstitutional Cabinet, without responsibility,
unknown to the constitution. I speak of back-stairs’ influence--of men
who bring messages to this House, which, although they do not appear
on the Journals, govern its decisions. Sir, the first question that I
asked on the subject of British relations, was, What is the opinion
of the Cabinet? What measures will they recommend to Congress?--(well
knowing that whatever measures we might take, they must execute them,
and therefore, that we should have their opinion on the subject.) My
answer was, (and from a Cabinet Minister too,) “_There is no longer
any Cabinet._” Subsequent circumstances, sir, have given me a personal
knowledge of the fact. It needs no commentary.
But the gentleman has told you that we ought to go to war, if for nothing
else, for the fur trade. Now, sir, the people on whose support he seems
to calculate, follow, let me tell him, a better business, and let me add,
that whilst men are happy at home reaping their own fields--the fruits of
their labor and industry--there is little danger of their being induced
to go sixteen or seventeen hundred miles in pursuit of beavers, raccoons,
or opossums, much less of going to war for the privilege. They are better
employed where they are. This trade, sir, may be important to Britain,
to nations who have exhausted every resource of industry at home, bowed
down by taxation and wretchedness. Let them, in God’s name, if they
please, follow the fur trade. They may, for me, catch every beaver in
North America. Yes, sir, our people have a better occupation--a safe,
profitable, honorable employment. While they should be engaged in distant
regions in hunting the beaver, they dread lest those whose natural prey
they are should begin to hunt them, should pillage their property, and
assassinate their constitution. Instead of these wild schemes, pay off
your debt, instead of prating about its confiscation. Do not, I beseech
you, expose at once your knavery and your folly. You have more lands than
you know what to do with; you have lately paid fifteen millions for yet
more. Go and work them, and cease to alarm the people with the cry of
wolf, until they become deaf to your voice, or at least laugh at you.
Mr. Chairman, if I felt less regard for what I deem the best interests of
this nation than for my own reputation, I should not, on this day, have
offered to address you, but would have waited to come out, bedecked with
flowers and bouquets of rhetoric, in a set speech. But, sir, I dreaded
lest a tone might be given to the mind of the committee--they will pardon
me, but I did fear, from all that I could see or hear, that they might be
prejudiced by its advocates, (under pretence of protecting our commerce,)
in favor of this ridiculous and preposterous project; I rose, sir, for
one, to plead guilty; to declare in the face of day that I will not go to
war for this carrying trade. I will agree to pass for an idiot if this is
not the public sentiment, and you will find it to your cost, begin the
war when you will.
Gentlemen talk of 1793. They might as well go back to the Trojan war.
What was your situation then? Then every heart beat high with sympathy
for France, for _republican France_! I am not prepared to say, with my
friend from Pennsylvania, that we were all ready to draw our swords in
her cause, but I affirm that we were prepared to have gone great lengths.
I am not ashamed to pay this compliment to the hearts of the American
people, even at the expense of their understandings. It was a noble and
generous sentiment, which nations like individuals are never the worse
for having felt. They were, I repeat it, ready to make great sacrifices
for France. And why ready? Because she was fighting the battles of the
human race against the combined enemies of their liberty; because she
was performing the part which Great Britain now, in fact, sustains,
forming the only bulwark against universal dominion. Knock away her navy,
and where are you? Under the naval despotism of France, unchecked and
unqualified by any antagonizing military power; at best but a change of
masters. The tyrant of the ocean, and the tyrant of the land, is one and
the same, lord of all, and who shall say him nay, or wherefore doest thou
this thing? Give to the tiger the properties of the shark, and there
is no longer safety for the beasts of the forest or the fishes of the
sea. Where was this high anti-Britannic spirit of the gentleman from
Pennsylvania, when his vote would have put an end to the British treaty,
that pestilent source of evil to this country? and at a time, too, when
it was not less the interest than the sentiment of this people to pull
down Great Britain and exalt France. Then, when the gentleman might
have acted with effect, he could not screw his courage to the sticking
place. Then England was combined in what has proven a feeble, inefficient
coalition, but which gave just cause of alarm to every friend of freedom.
Now the liberties of the human race are threatened by a single power,
more formidable than the coalesced world, to whose utmost ambition, vast
as it is, the naval force of Great Britain forms the only obstacle.
I am perfectly sensible and ashamed of the trespass I am making on the
patience of the committee; but as I know not whether it will be in my
power to trouble them again on this subject, I must beg leave to continue
my crude and desultory observations. I am not ashamed to confess that
they are so. At the commencement of this session, we received a printed
Message from the President of the United States, breathing a great deal
of national honor, and indignation at the outrages we had endured,
particularly from Spain. She was specially named and pointed at. She
had pirated upon your commerce, imprisoned your citizens, violated
your actual territory; invaded the very limits solemnly established
between the two nations by the Treaty of San Lorenzo. Some of the State
Legislatures (among others the very State on which the gentleman from
Pennsylvania relies for support) sent forward resolutions pledging
their lives, their fortunes, and their sacred honor, in support of any
measures you might take in vindication of your injured rights. Well,
sir, what have you done? You have had resolutions laid upon your table,
gone to some expense of printing and stationery--mere pen, ink, and
paper, that’s all. Like true political quacks, you deal only in handbills
and nostrums. Sir, I blush to see the record of our proceedings; they
resemble nothing but the advertisements of patent medicines. Here you
have “the worm-destroying lozenges,” there “Church’s cough drops;” and,
to crown the whole, “Sloan’s vegetable specific,” an infallible remedy
for all nervous disorders and vertigoes of brain-sick politicians; each
man earnestly adjuring you to give his medicine only a fair trial. If,
indeed, these wonder-working nostrums could perform but one-half of what
they promise, there is little danger of our dying a political death, at
this time at least. But, sir, in politics as in physics, the doctor is
ofttimes the most dangerous disease; and this I take to be our case at
present.
But, sir, why do I talk of Spain? “There are no longer Pyrenees!” There
exists no such nation, no such being as a Spanish King, or Minister.
It is a mere juggle, played off for the benefit of those who put the
mechanism into motion. You know, sir, that you have no differences with
Spain; that she is the passive tool of a superior power, to whom, at this
moment, you are crouching. Are your differences, indeed, with Spain?
And where are you going to send your political panacea, resolutions and
handbills excepted, your sole arcanum of Government, your king cure all?
To Madrid? No--you are not such quacks as not to know where the shoe
pinches--to Paris. You know, at least, where the disease lies, and there
you apply your remedy. When the nation anxiously demands the result of
your deliberations, you hang your head and blush to tell. You are afraid
to tell. Your mouth is hermetically sealed. Your honor has received a
wound which must not take air. Gentlemen dare not come forward and avow
their work, much less defend it in the presence of the nation. Give them
all they ask, that Spain exists--and what then? After shrinking from
the Spanish jackall, do you presume to bully the British lion? But here
the secret comes out. Britain is your rival in trade, and governed as
you are by counting-house politician; you would sacrifice the paramount
interests of the country, to wound that rival. For Spain and France you
are carriers, and from good customers every indignity is to be endured.
And what is the nature of this trade? Is it that carrying trade which
sends abroad the flour, tobacco, cotton, beef, pork, fish, and lumber
of this country, and brings back in return foreign articles necessary
for our existence or comfort? No, sir, it is a trade carried on--the
Lord knows where, or by whom; now doubling Cape Horn, now the Cape of
Good Hope. I do not say that there is no profit in it--for it would not
then be pursued--but it is a trade that tends to assimilate our manners
and Government to those of the most corrupt countries of Europe. Yes,
sir, and when a question of great national magnitude presents itself to
you, it causes those who now prate about national honor and spirit to
pocket any insult; to consider it as a mere matter of debit and credit; a
business of profit and loss, and nothing else.
The first thing that struck my mind, when this resolution was laid on
the table, was _unde derivatur_? A question always put to us at school.
Whence comes it? Is this only the putative father of the bantling he is
taxed to maintain, or, indeed, the actual parent, the real progenitor
of the child? Or, is it the production of the Cabinet? But, I knew you
had no Cabinet, no system. I had seen despatches relating to vital
measures laid before you the day after your final decision on those
measures, four weeks after they were received; not only their contents,
but their very existence, all that time unsuspected and unknown to men
whom the people fondly believe assist with their wisdom and experience
at every important deliberation. Do you believe that this system, or
rather this no-system, will do? I am free to answer it will not, it
cannot last. I am not so afraid of the fair, open, constitutional,
responsible influence of Government, but I shrink intuitively from this
left-handed, invisible, irresponsible influence, which defies the touch,
but pervades and decides every thing. Let the Executive come forward to
the Legislature; let us see while we feel it. If we cannot rely on its
wisdom, is it any disparagement to the gentleman from Pennsylvania to say
that I cannot rely upon him? No, sir, he has mistaken his talent. He is
not the Palinurus on whose skill the nation, at this trying moment, can
repose their confidence. I will have nothing to do with his paper, much
less will I endorse it, and make myself responsible for its goodness. I
will not put my name to it. I assert that there is no Cabinet, no system,
no plan; that which I believe in one place, I shall never hesitate to
say in another. This is no time, no place, for mincing our steps. The
people have a right to know; they shall know the state of their affairs;
at least, as far as I am at liberty to communicate them. I speak from
personal knowledge. Ten days ago there had been no consultation; there
existed no opinion in your Executive department; at least, none that was
avowed. On the contrary, there was an express disavowal of any opinion
whatsoever, on the great subject before you; and I have good reason for
saying that none has been formed since. Some time ago, a book was laid
on our tables, which, like some other bantlings, did not bear the name
of its father. Here I was taught to expect a solution of all doubts, an
end to all our difficulties. If, sir, I were the foe--as I trust I am
the friend of this nation--I would exclaim, “Oh, that mine enemy would
write a book!” At the very outset, in the very first page, I believe,
there is a complete abandonment of the principle in dispute. Has any
gentleman got the work? [It was handed by one of the members.] The first
position taken is the broad principle of the unlimited freedom of trade
between nations at peace, which the writer endeavors to extend to the
trade between a neutral and a belligerent power, accompanied, however,
by this acknowledgment: “But, inasmuch as the trade of a neutral with
a belligerent nation, might, in certain special cases, affect the
safety of its antagonist, usage, founded on the principle of necessity,
has admitted a few exceptions to the general rule.” Whence comes the
doctrine of contraband, blockade, and enemy’s property? Now, sir, for
what does that celebrated pamphlet, “War in Disguise”--which is said to
have been written under the eye of the British Prime Minister--contend,
but this “principle of necessity?” And this is abandoned by this
pamphleteer at the very threshold of the discussion. But, as if this
were not enough, he goes on to assign as a reason for not referring to
the authority of the ancients, “that the great change which has taken
place in the state of manners, in the maxims of war, and in the course
of commerce, make it pretty certain” (what degree of certainty is this?)
“that either nothing will be found relating to the question, or nothing
sufficiently applicable to deserve attention in deciding it.” Here, sir,
is an apology of the writer for not disclosing the whole extent of his
learning, (which might have overwhelmed the reader,) is the admission
that a change of circumstances, (“in the course of commerce,”) has made
(and, therefore, will now justify) a total change of the law of nations.
What more could the most inveterate advocate of English usurpation
demand? What else can they require to establish all, and even more
than they contend for? Sir, there is a class of men--we know them very
well--who, if you only permit them to lay the foundation, will build you
up, step by step, and brick by brick, very neat and showy, if not tenable
arguments. To detect them, it is only necessary to watch their premises,
where you will often find the point at issue surrendered, as in this case
it is.
Again: Is the _mare liberum_ any where asserted in this book, that free
ships make free goods? No, sir; the right of search is acknowledged; that
enemy’s property is lawful prize, is sealed and delivered. And, after
abandoning these principles, what becomes of the doctrine that a mere
shifting of the goods from one ship to another, the touching at another
port, changes the property? Sir, give up this principle, and there is an
end to the question. You lie at the mercy of the conscience of a Court of
Admiralty. Is Spanish sugar, or French coffee, made American property, by
the mere change of the cargo, or even by the landing and payment of the
duties? Does this operation effect a change of property? And when those
duties are drawn back, and the sugar and coffee re-exported, are they
not (as enemy’s property) liable to seizure upon the principles of the
“Examination of the British doctrine,” &c.? And, is there not the best
reason to believe, that this operation is performed in many, if not in
most cases, to give a neutral aspect and color to the merchandise?
I am prepared, sir, to be represented as willing to surrender important
rights of this nation to a foreign Government. I have been told that
this sentiment is already whispered in the dark, by time-servers and
sycophants. But, if your Clerk dared to print them, I would appeal to
your Journals. I would call for the reading of them, but that I know
they are not for profane eyes to look upon. I confess that I am more
ready to surrender to a naval power a square league of ocean, than to a
territorial one, a square inch of land within our limits; and I am ready
to meet the friends of the resolution on this ground at any time.
Let them take off the injunction of secrecy. They dare not. They are
ashamed and afraid to do it. They may give winks and nods, and pretend
to be wise, but they dare not come out and tell the nation what they
have done. Gentlemen may take notice if they please, but I will never,
from any motive short of self-defence, enter upon war. I will never be
instrumental to the ambitious schemes of Buonaparte, nor put into his
hands what will enable him to wield the world, and on the very principle
that I wished success to the French arms in 1793. And wherefore? Because
the case is changed. Great Britain can never again see the year 1760.
Her continental influence is gone for ever. Let who will be uppermost
on the continent of Europe, she must find more than a counterpoise for
her strength. Her race is run. She can only be formidable as a maritime
power; and, even as such, perhaps not long. Are you going to justify the
acts of the last Administration, for which they have been deprived of the
Government at our instance? Are you going back to the ground of 1798-’9?
I ask any man who now advocates a rupture with England to assign a single
reason for his opinion, that would not have justified a French war in
1798? If injury and insult abroad would have justified it, we had them
in abundance then. But what did the Republicans say at that day? That,
under the cover of a war with France, the Executive would be armed with a
patronage and power which might enable it to master our liberties. They
deprecated foreign war and navies, and standing armies, and loans, and
taxes. The delirium passed away--the good sense of the people triumphed,
and our differences were accommodated without a war. And what is there
in the situation of England that invites to war with her? It is true she
does not deal so largely in perfectibility, but she supplies you with a
much more useful commodity--with coarse woollens. With less profession,
indeed, she occupies the place of France in 1793. She is the sole bulwark
of the human race against universal dominion; no thanks to her for it.
In protecting her own existence, she ensures theirs. I care not who
stands in this situation, whether England or Buonaparte. I practise
the doctrines now that I professed in 1798. Gentlemen may hunt up the
journals if they please; I voted against all such projects under the
Administration of John Adams, and I will continue to do so under that
of Thomas Jefferson. Are you not contented with being free and happy at
home? Or will you surrender these blessings that your merchants may tread
on Turkish and Persian carpets, and burn the perfumes of the East in
their vaulted rooms? Gentlemen say it is but an annual million lost, and
even if it were five times that amount, what is it compared with your
neutral rights? Sir, let me tell them a hundred millions will be but a
drop in the bucket, if once they launch without rudder or compass into
this ocean of foreign warfare. Whom do they want to attack? England. They
hope it is a popular thing, and talk about Bunker’s Hill, and the gallant
feats of our Revolution. But is Bunker’s Hill to be the theatre of war?
No, sir, you have selected the ocean, and the object of attack is that
very navy which prevented the combined fleets of France and Spain from
levying contribution upon you in your own seas; that very navy which, in
the famous war of 1798, stood between you and danger. Whilst the fleets
of the enemy were pent up in Toulon, or pinioned in Brest, we performed
wonders to be sure; but, sir, if England had drawn off, France would
have told you quite a different tale. You would have struck no medals.
This is not the sort of conflict that you are to count upon, if you go
to war with Great Britain. _Quem Deus vult perdere prius dementat._ And
are you mad enough to take up the cudgels that have been struck from
the nerveless hands of the three great maritime powers of Europe? Shall
the planter mortgage his little crop, and jeopardize the constitution
in support of commercial monopoly, in the vain hope of satisfying the
insatiable greediness of trade? Administer the constitution upon its
own principles; for the general welfare, and not for the benefit of
any particular class of men. Do you meditate war for the possession of
Baton Rouge or Mobile, places which your own laws declare to be within
your limits? Is it even for the fair trade that exchanges your surplus
products for such foreign articles as you require? No, sir, it is for a
circuitous trade--an ignis fatuus. And against whom? A nation from whom
you have any thing to fear?--I speak as to our liberties. No, sir, with
a nation from whom you have nothing, or next to nothing, to fear; to the
aggrandizement of one against which you have every thing to dread. I
look to their ability and interest, not to their disposition. When you
rely on that the case is desperate. Is it to be inferred from all this
that I would yield to Great Britain? No. I would act towards her now,
as I was disposed to do towards France, in 1798-’9; treat with her, and
for the same reason, on the same principles. Do I say I would treat with
her? At this moment you have a negotiation pending with her Government.
With her you have not tried negotiation and failed, totally failed, as
you have done with Spain, or rather France; and, wherefore, under such
circumstances, this hostile spirit to the one, and this--I will not say
what--to the other?
But a great deal is said about the laws of nations. What is national
law but national power guided by national interest? You yourselves
acknowledge and practise upon this principle where you can, or where
you dare--with the Indian tribes for instance. I might give another and
more forcible illustration. Will the learned lumber of your libraries
add a ship to your fleet, or a shilling to your revenue? Will it pay or
maintain a single soldier? And will you preach and prate of violations of
your neutral rights, when you tamely and meanly submit to the violation
of your territory? Will you collar the stealer of your sheep, and let
him escape that has invaded the repose of your fireside--has insulted
your wife and children under your own roof? This is the heroism of truck
and traffic--the public spirit of sordid avarice. Great Britain violates
your flag on the high seas. What is her situation? Contending, not for
the dismantling of Dunkirk, for Quebec, or Pondicherry, but for London
and Westminster--for life; her enemy violating at will the territories
of other nations, acquiring thereby a colossal power that threatens the
very existence of her rival. But she has one vulnerable point to the
arms of her adversary, which she covers with the ensigns of neutrality;
she draws the neutral flag over the heel of Achilles. And can you ask
that adversary to respect it at the expense of her existence? and in
favor of whom? An enemy that respects no neutral territory of Europe,
and not even your own. I repeat that the insults of Spain towards this
nation have been at the instigation of France; that there is no longer
any Spain. Well, sir, because the French Government does not put this
in the Moniteur, you choose to shut your eyes to it. None so blind as
those who will not see. You shut your own eyes, and to blind those of
other people, you go into conclave, and slink out again and say, “a
great affair of State!”--_C’est une grande affaire d’Etat!_ It seems
that your sensibility is entirely confined to the extremities. You may
be pulled by the nose and ears, and never feel it, but let your strong
box be attacked, and you are all nerve--“Let us go to war!” Sir, if they
called upon me only for my little _peculium_ to carry it on, perhaps I
might give it; but my rights and liberties are involved in the grant,
and I will never surrender them while I have life. The gentleman from
Massachusetts (Mr. CROWNINSHIELD) is for sponging the debt. I can never
consent to it; I will never bring the ways and means of fraudulent
bankruptcy into your committee of supply. Confiscation and swindling
shall never be found among my estimates to meet the current expenditure
of peace or war. No, sir, I have said with the doors closed, and I say
so when the doors are open, “pay the public debt;” get rid of that dead
weight upon your Government--that cramp upon all your measures--and then
you may put the world at defiance. So long as it hangs upon you, you
must have revenue, and to have revenue you must have commerce--commerce,
peace. And shall these nefarious schemes be advised for lightening the
public burdens; will you resort to these low and pitiful shifts; dare
even to mention these dishonest artifices to eke out your expenses, when
the public treasure is lavished on Turks and infidels, on singing boys
and dancing girls, to furnish the means of bestiality to an African
barbarian?
Gentlemen say that Great Britain will count upon our divisions. How?
What does she know of them? Can they ever expect greater unanimity
than prevailed at the last Presidential election? No, sir, it is the
gentleman’s own conscience that squeaks. But if she cannot calculate upon
your divisions, at least she may reckon upon your pusillanimity. She may
well despise the resentment that cannot be excited to honorable battle on
its own ground; the mere effusion of mercantile cupidity. Gentlemen talk
of repealing the British Treaty. The gentleman from Pennsylvania should
have thought of that, before he voted to carry it into effect. And what
is all this for? A point which Great Britain will not abandon to Russia,
you expect her to yield to you--Russia! indisputably the second power of
continental Europe; with not less than half a million of hardy troops;
with sixty sail-of-the-line, thirty millions of subjects, and a territory
more extensive even than our own--Russia, sir, the storehouse of the
British Navy, whom it is not more the policy and the interest than the
sentiment of that Government to soothe and to conciliate--her sole hope
of a diversion on the continent, and her only efficient ally. What this
formidable power cannot obtain with fleets and armies, you will command
by writ--with pothooks and hangers. I am for no such policy. True honor
is always the same. Before you enter into a contest, public or private,
be sure you have fortitude enough to go through with it. If you mean war,
say so, and prepare for it. Look on the other side; behold the respect in
which France holds neutral rights on land; observe her conduct in regard
to the Franconian estates of the King of Prussia. I say nothing of the
petty powers--of the Elector of Baden, or of the Swiss--I speak of a
first-rate Monarchy of Europe, and at a moment, too, when its neutrality
was the object of all others nearest to the heart of the French Emperor.
If you make him monarch of the ocean, you may bid adieu to it for ever.
You may take your leave, sir, of navigation--even of the Mississippi.
What is the situation of New Orleans if attacked to-morrow? Filled with a
discontented and repining people, whose language, manners, and religion,
all incline them to the invader--a dissatisfied people, who despise the
miserable Governor you have set over them--whose honest prejudices and
basest passions alike take part against you. I draw my information from
no dubious source; but from a native American, an enlightened member of
that odious and imbecile Government. You have official information that
the town and its dependencies are utterly defenceless and untenable. A
firm belief that (apprised of this) Government would do something to put
the place in a state of security, alone has kept the American portion
of that community quiet. You have held that post, you now hold it, by
the tenure of the naval predominance of England, and yet you are for a
British naval war.
There are now but two great commercial nations--Great Britain is one,
and the United States the other. When you consider the many points of
contact between our interests, you may be surprised that there has been
so little collision. Sir, to the other belligerent nations of Europe
your navigation is a convenience, I might say, a necessary. If you do
not carry for them they must starve, at least for the luxuries of life,
which custom has rendered almost indispensable; and if you cannot act
with some degree of spirit towards those who are dependent upon you as
carriers, do you reckon to browbeat a jealous rival, who, the moment
she lets slip the dogs of war, sweeps you at a blow from the ocean. And
_cui bono_? for whose benefit? The planter? Nothing like it. The fair,
honest, real American merchant? No, sir, for renegadoes; to-day American,
to-morrow Danes. Go to war when you will, the property, now covered by
the American, will then pass under the Danish, or some other neutral
flag. Gentlemen say that one English ship is worth three of ours; we
shall therefore have the advantage in privateering. Did they ever know a
nation to get rich by privateering? This is stuff, sir, for the nursery.
Remember that your products are bulky, as has been stated; that they
require a vast tonnage to transport them abroad, and that but two nations
possess that tonnage. Take these carriers out of the market. What is the
result? The manufactures of England, which (to use a finishing touch of
the gentlemen’s rhetoric) have received the finishing stroke of art, lie
in a small comparative compass. The neutral trade can carry them. Your
produce rots in the warehouse. You go to Eustatia or St. Thomas, and
get a striped blanket for a joe, if you can raise one. Double freight,
charges, and commission. Who receives the profit? The carrier. Who pays
it? The consumer. All your produce that finds its way to England, must
bear the same accumulated charges--with this difference, that _there_ the
burden falls on the home price. I appeal to the experience of the late
war, which has been so often cited. What then was the price of produce,
and of broadcloth?
But you are told England will not make war; that she has her hands full.
Holland calculated in the same way in 1781. How did it turn out? You
stand now in the place of Holland, then without her navy, and unaided
by the preponderating fleets of France and Spain, to say nothing of the
Baltic Powers. Do you want to take up the cudgels where these great
maritime States have been forced to drop them? to meet Great Britain
on the ocean, and drive her off its face? If you are so far gone as
this, every capital measure of your policy has hitherto been wrong. You
should have nurtured the old, and devised new systems of taxation, and
have cherished your navy. Begin this business when you may, land-taxes,
stamp-acts, window-taxes, hearth-money, excise, in all its modifications
of vexation and oppression, must precede or follow after. But, sir, as
French is the fashion of the day, I may be asked for my _projet_. I can
readily tell gentlemen what I will not do. I will not propitiate any
foreign nation with money. I will not launch into a naval war with Great
Britain, although I am ready to meet her at the Cowpens or on Bunker’s
Hill--and for this plain reason, we are a great land animal, and our
business is on shore. I will send her money, sir, on no pretext whatever,
much less on pretence of buying Labrador, or Botany Bay, when my real
object was to secure limits, which she formally acknowledged at the peace
of 1783. I go further: I would (if any thing) have laid an embargo. This
would have got our own property home, and our adversary’s into our power.
If there is any wisdom left among us, the first step towards hostility
will always be an embargo. In six months all your mercantile megrims
would vanish. As to us, although it would cut deep, we can stand it.
Without such a precaution, go to war when you will, you go to the wall.
As to debts, strike the balance to-morrow, and England is I believe in
our debt.
I hope, sir, to be excused for proceeding in this desultory course. I
flatter myself I shall not have occasion again to trouble you. I know
not that I shall be able, certainly not willing, unless provoked in
self-defence. I ask your attention to the character of the inhabitants
of that Southern country, on whom gentlemen rely for support of their
measure. Who and what are they? A simple, agricultural people, accustomed
to travel in peace to market with the produce of their labor. Who takes
it from us? Another people, devoted to manufactures--our sole source of
supply. I have seen some stuff in the newspapers about manufactures in
Saxony, and about a man who is no longer the chief of a dominant faction.
The greatest man whom I ever knew--the immortal author of the letters
of Curtius--has remarked the proneness of cunning people to wrap up and
disguise in well-selected phrases, doctrines too deformed and detestable
to bear exposure in naked words; by a judicious choice of epithets to
draw the attention from the lurking principle beneath, and perpetuate
delusion. But a little while ago, and any man might have been proud to
have been considered as the head of the Republican party. Now, it seems,
it is reproachful to be deemed the chief of a dominant faction. Mark the
magic of words. Head--_chief_. Republican party--_dominant faction_.
But as to the Saxon manufactures. What became of their Dresden china?
Why the Prussian bayonets have broken all the pots, and you are content
with Worcestershire or Staffordshire ware. There are some other fine
manufactures on the continent, but no supply, except perhaps of linens,
the article we can best dispense with. A few individuals, sir, may have a
coat of Louvier’s cloth, or a service of Sevres china; but there is too
little, and that little too dear, to furnish the nation. You must depend
on the fur trade in earnest, and wear buffalo hides and bear skins.
Can any man who understands Europe pretend to say that a particular
foreign policy is now right because it would have been expedient twenty,
or even ten years ago, without abandoning all regard for common sense?
Sir, it is the Statesman’s province to be guided by circumstances; to
anticipate, to foresee them; to give them a course and a direction;
to mould them to his purpose. It is the business of a counting-house
clerk to peer into the day-book and ledger, to see no further than the
spectacles on his nose, to feel not beyond the pen behind his ear? to
chatter in coffee-houses, and be the oracle of clubs. From 1783 to 1793,
and even later, (I don’t stickle for dates,) France had a formidable
marine--so had Holland--so had Spain. The two first possessed of thriving
manufactures and a flourishing commerce. Great Britain, tremblingly alive
to her manufacturing interests and carrying trade, would have felt to the
heart any measure calculated to favor her rivals in these pursuits. She
would have yielded then to her fears and her jealousy alone. What is the
case now? She lays an export duty on her manufactures, and there ends the
question. If Georgia shall (from whatever cause) so completely monopolize
the culture of cotton as to be able to lay an export duty of three per
cent. upon it, besides taxing its cultivators, in every other shape, that
human or infernal ingenuity can devise, is Pennsylvania likely to rival
her and take away the trade?
But, sir, it seems that we, who are opposed to this resolution, are men
of no nerve, who trembled in the days of the British treaty--cowards (I
presume) in the reign of terror? Is this true? Hunt up the Journals; and
let our actions tell. We pursue our old unshaken course. We care not for
the nations of Europe, but make foreign relations bend to our political
principles and subserve our country’s interest. We have no wish to see
another Actium, or Pharsalia, or the lieutenants of a modern Alexander
playing at piquet, or all-fours, for the empire of the world. It is
poor comfort to us to be told that France has too decided a taste for
luxurious things to meddle with us; that Egypt is her object, or the
coast of Barbary, and, at the worst, we shall be the last devoured. We
are enamored with neither nation; we would play their own game upon them,
use them for our interest and convenience. But with all my abhorrence of
the British Government, I should not hesitate between Westminster Hall
and a Middlesex jury, on the one hand, and the wood of Vincennes and a
file of grenadiers, on the other. That jury-trial, which walked with
Horne Tooke and Hardy through the flames of ministerial persecution, is,
I confess, more to my taste than the trial of the Duke d’Enghein.
Mr. Chairman, I am sensible of having detained the committee longer than
I ought; certainly much longer than I intended. I am equally sensible
of their politeness, and not less so, sir, of your patient attention.
It is your own indulgence, sir, badly requited indeed, to which you owe
this persecution. I might offer another apology for these undigested,
desultory remarks--my never having seen the Treasury documents. Until I
came into the House this morning, I had been stretched on a sick bed.
But when I behold the affairs of this nation, instead of being where I
hoped, and the people believed, they were, in the hands of responsible
men, committed to Tom, Dick and Harry, to the refuse of the retail trade
of politics, I do feel, I cannot help feeling, the most deep and serious
concern. If the Executive Government would step forward and say, “such
is our plan, such is our opinion, and such are our reasons in support
of it,” I would meet it fairly, would openly oppose, or pledge myself
to support it. But, without compass or polar star, I will not launch
into an ocean of unexplored measures, which stand condemned by all the
information to which I have access. The Constitution of the United States
declares it to be the province and the duty of the President “to give
to Congress, from time to time, information of the state of the Union,
and recommend to their consideration such measures as he shall judge
expedient and necessary.” Has he done it? I know, sir, that we may say,
and do say, that we are independent, (would it were true;) as free to
give a direction to the Executive as to receive it from him. But do
what you will, foreign relations, every measure short of war, and even
the course of hostilities, depend upon him. He stands at the helm, and
must guide the vessel of State. You give him money to buy Florida, and
he purchases Louisiana. You may furnish means; the application of those
means rests with him. Let not the master and mate go below when the
ship is in distress, and throw the responsibility upon the cook and the
cabin-boy. I said so when your doors were shut; I scorn to say less now
that they are open. Gentlemen may say what they please. They may put an
insignificant individual to the ban of the Republic--I shall not alter
my course. I blush with indignation at the misrepresentations which
have gone forth in the public prints of our proceedings, public and
private. Are the people of the United States, the real sovereigns of the
country, unworthy of knowing what, there is too much reason to believe,
has been communicated to the privileged spies of foreign governments?
I think our citizens just as well entitled to know what has passed as
the Marquis Yrujo, who has bearded your President to his face, insulted
your Government within its own peculiar jurisdiction, and outraged all
decency. Do you mistake this diplomatic puppet for an automaton? He has
orders for all he does. Take his instructions from his pocket to-morrow,
they are signed “Charles Maurice Talleyrand.” Let the nation know what
they have to depend upon. Be true to them, and (trust me) they will prove
true to themselves and to you. The people are honest--now at home at
their ploughs, not dreaming of what you are about. But the spirit of
inquiry, that has too long slept, will be, must be awakened. Let them
begin to think--not to say such things are proper because they have been
done--of what has been done, and wherefore, and all will be right.
The committee then rose, and the House adjourned.
THURSDAY, March 6.
_Non-Importation of British Goods._
The House resolved itself into a Committee of the Whole on the state of
the Union on Mr. GREGG’s resolution.
Mr. N. WILLIAMS.--The subject now under consideration calls for a display
of all the knowledge and experience of commercial men and statesmen. And
although I do not profess to be of either class, yet if I should chance
to bestow a mite of information upon a subject of such vast importance to
this country, it will no doubt be favorably received by this honorable
committee.
The resolution now under discussion has for its principal object the
protection of the active commerce of our country; it therefore becomes
us perhaps, before we enter into the merits of the measure proposed, to
inquire whether commerce is of itself so important to us, as to demand
our protection. This first inquiry might seem unnecessary, and even
extraordinary, had we not witnessed so recently, upon this floor, the
very light and trivial manner in which the commerce of this country has
been treated, and had we not heard the very strange opinion, that it
ought to be left to take care of itself.
It is possible that the agricultural class, which embraces a very great
and respectable part of the population of our country, will look for
some evidence of the benefits to be derived to them from the protected
enterprise of our merchants. Those benefits, however, are so obvious to
an attentive observer, that very little need be urged to render them
apparent. It has been justly said that agriculture and commerce are
handmaids to each other. Indeed, their interests are strongly and durably
interwoven. Commerce has a direct tendency to raise the price of the
product of the farmer’s labor, by seeking in every part of the world
the best markets for our articles of export, and by bringing back and
scattering through the country that circulating medium which cherishes
industry, and sweetens the toils of the laborer. If we had not an active
commerce among our citizens, it is evident that foreign merchants and
nations only would be enriched by the profits of our agriculture, would
convert us into mere diggers of the soil for their benefit, and would
thereby gain the means of insulting and degrading us more abundantly. The
price of our produce will lessen in the proportion that we curtail the
means of transporting it to the best foreign markets, and the means will
assuredly be curtailed if we withdraw our protection from the enterprise
of our citizens upon the ocean. Declare to foreign nations that the
active commerce of this country meets no longer the fostering care of
Government, and you will soon hear of their ten-fold insolence upon the
seas; and our vessels, frowned from the enjoyment of their rights there,
will find an asylum in our harbors only, where they will be left to rot.
The produce of our country must share a similar fate, unless we consent
to dispose of it to foreign merchants and speculators, at any price they
may please to offer for it. But what is not less important, if we have a
regard for morals and happiness, a horrid picture here presents itself;
that moment you stagnate the vent of your grain, an extensive inland
country will be inundated with whiskey and the destructive vices which
flow from the free use of it.
Although important, this is far from being the most important view which
may be taken of this subject. It is a conceded point that our Government
must by some means or other have revenue. The greatest statesmen and
patriots of this country have united, I believe, in considering commerce
as our most fruitful source of revenue and riches. It presents a mode of
fiscal exaction, the most in union with the spirit and feelings as well
as the interests of the American people--that of indirect taxation. By
this mode the consumers of articles of foreign growth and manufacture,
contribute freely and copiously to the support of our Government, and to
that fund which is destined to the payment of the national debt, and this
too without feeling in a great degree the weight of the contribution. But
the moment, sir, we give up this source of revenue, or expose it to the
cupidity and rapacity of foreign powers, a resort to modes of taxation
less congenial with the spirit of freedom must be inevitable. Let those
who are for giving up this, look about and see what other sources of
revenue our country can furnish. Experience, that mother of wisdom, has
already instructed us, that excise laws are too odious in many parts of
our country to be borne; indeed this source of revenue would at best be
trifling. Personal property is of a nature too occult and too liable to
shift and change to become a safe and permanent source of revenue. The
sale of the public lands, relied on by some, is an expedient which on
many accounts will be slow and inefficient; but if the sentiment prevails
of leaving commerce to take care of itself, and my notions are correct
that such a measure will paralyze the industry of the farmer, it may very
justly be doubted, whether our wild lands will meet with a ready market.
What then, I would ask, remains, but a land tax, to supply a fund to meet
the necessary calls of our Government; a tax so odious in many parts of
our country, as to be one of the powerful causes of the overthrow of
one administration, and if again resorted to, may possibly produce the
destruction of another.
Should considerations like these, thoroughly pursued, prove insufficient
to convince gentlemen that the commerce of this country is worthy to be
shielded by her protecting arm, I may despair of doing it, perhaps, by
any further arguments within my power to adduce. But it is certainly
deserving the remembrance of this honorable body, that our Government,
by the course it has taken, has long since pledged itself to support
the rights and interests of our merchants upon the ocean. Aside of
the immense revenues drawn from their enterprise and industry, we may
consider the measures alone, adopted by our Government, to protect and
guarantee their interests, by compacts with foreign nations and armaments
for their defence, as having the direct effect of luring them to embark
their property upon the seas with the most implicit security, and with
almost a certain assurance that this protection should be continued. In
short, I do not see how it can be denied that these privileges are as
much entitled to the protection of Government, as those, equally, though
not more sacred, which are enjoyed by our fellow-citizens upon land.
To relinquish any of them would be taking a step towards a dastardly
abandonment of our independence as a nation--and would be announcing to
every people on earth, that we have become so tame and submissive, that
we are willing to be converted into simple tools and instruments for
their use and profit, and to desert the defence of our own sacred rights.
Whatever course policy or wisdom might have dictated to this nation _à
priori_ respecting commerce, it is evidently too late now to retrace our
steps; nay, we cannot do it, short of treachery towards the mercantile
interest, and without rendering ourselves a subject of derision and
contempt to all Europe. If we shrink on the present occasion from that
bold and energetic course which the times seem to call for, what a
respectable figure we shall cut in history! This will be our story:--“The
American nation, finding her commerce in the Mediterranean pestered by
the petty barbarous powers surrounding that sea, blustered and talked
manfully like Bobadil in the play. Now this hero was invincible, or he
would not have talked so valiantly. ‘Twenty more--kill them! Twenty
more--kill them too!’ But the moment their rights upon the ocean were
assailed by a nation at once respected and powerful, they meanly shrunk
from the contest, and in vain did their admired Executive endeavor to
rally the representatives of the people, in support of the firm and
dignified measures which he recommended.”
If therefore it is clear, as I trust it is, that commerce is the great
supporter of agriculture--that it is at the same time the most rational
and most prolific source of revenue and riches to our country, and if,
in addition to this, Government has pledged itself to a vast body of
respectable citizens, in every part of the United States, to protect
their property legally employed in commerce--to say that this commerce
shall now be left to take care of itself--of all the insulting mockeries
ever offered to this nation, this appears to me the most insulting. But
with many, and I do not suffer myself to doubt, with a great majority
of this committee, this question may be considered as at rest. Commerce
is worthy of our protection. Our natural situation, and the laudable
enterprise of our citizens, which leads them into every sea and to every
land, have made it ours, and we cannot abandon it without being guilty of
the most palpable folly.
Mr. MASTERS.--I shall not deny that Great Britain has insulted us
by impressing our seamen, neither shall I deny that that nation has
committed wanton aggressions and depredations on our commerce, and that
commerce ought to be protected. That the resolution under consideration
is the best course to be pursued for the interest of this nation, I shall
contend against.
Restraints and prohibitions between nations have always arisen from two
circumstances--the first, to promote their home industry or manufactures.
The liberal price of wages, joined with the plenty and cheapness of land,
which induces the laborer to quit his employer and become planter or
farmer himself, who rewards with the same liberality which induces his
laborers to leave their employment for the same reasons as the first:
therefore, it is impossible for manufactures to flourish in this country
in our present situation.
The case in most other countries is very different, where the price
of labor is low, and the rent and the profit consume the wages of the
laborer, and the higher order of people oppress the inferior, which I
hope never to see in this country.
It may rationally be calculated that some of the Eastern and Middle
States will eventually become manufacturing States; some of those States
are nearly filled with people, and many individuals have large capitals
employed in foreign commerce, to the amount in many instances of two and
three hundred thousand dollars each. When peace takes place in Europe,
and things come down to their natural standard, and they can no longer
employ that capital to advantage in commercial speculations, they will
withdraw the same from that employment; they must make use of those
capitals somewhere; they cannot invest them to any advantage in our
public funds, bank stock or other corporations, beyond a certain extent;
they therefore, by the aid of water-works and machinery, will naturally
employ those capitals in manufactures, and I trust the time is not many
years distant. That is not now the case, and can have no bearing on the
present question; indeed, it is hardly contended that the resolution is
brought forward for that purpose; it must therefore be brought forward
for some other purpose.
The other circumstance which gives rise to prohibitions between nations,
arises from the violence of national animosity, which generally ends
in war. This circumstance has brought this resolution into existence;
the preamble speaks warlike language, and the whole taken together is
a prelude to war with a nation who has two hundred ships-of-the-line,
four hundred frigates, besides gun-brigs and other armed vessels, whose
revenue is between forty and fifty millions sterling, who can go to war
with us without any additional expense to themselves, who will sweep the
ocean of American commerce, amounting to nearly one hundred millions of
dollars. What then will be the situation of your carrying trade? What
then will be the situation of your commerce and your country?
But the honorable gentleman from Massachusetts (Mr. CROWNINSHIELD) has
told us “if we go to war, we can do Great Britain the most injury.” The
navigation of their merchant vessels is principally carried on under
convoy. Some individuals may fit out a few privateers and capture now
and then a vessel, and put some prize money in their private pockets; it
cannot be of any advantage to the nation, which will groan under poverty
and distress.
It appears to me a matter of great deliberation how far we ought to
adopt the present resolution, by prohibiting the importation of British
manufactures. In every country it ever was, and always must be, the
interest of the great body of the people to buy whatever they want, of
those who sell it cheapest. We cannot procure the same articles so cheap
elsewhere; even should the measure not involve us in a war, prohibitions
and revenge naturally dictate retaliation, and nations seldom fail to
do it. The honorable mover of the resolution (Mr. GREGG) asks us “how
it is to be inferred, we cannot abide by and execute this system?” It
is to be inferred from retaliation, and observation of nations who have
preceded us. When France, in 1667, laid discriminating duties on Holland,
the Dutch retaliated by the prohibition of French wines, brandies,
and the like: a war followed, and the peace of Nimeguen regulated
their commercial disputes. About that time the English prohibited
the importation of lace manufactured in Flanders; the Government of
that country, which was then under the dominion of Spain, immediately
retaliated and prohibited all importation of English woollens. Soon
after this, the French and English mutually began their heavy duties and
prohibitions, and have ever since been in commercial disputes, quarrels,
and hostilities; and we, with our eyes open, are now going into the same
system. The same honorable gentleman has also said it would attack Great
Britain in her vitals, in her manufactories and warehouses. It seems
a bad method of compensating injuries done to us, to do another worse
injury to ourselves, which I believe will be the case by adopting the
present resolution; it will have a natural tendency to retaliation and
revenge.
Mr. SMILIE.--I am in favor, Mr. Chairman, of the resolution under
consideration; and lest it should be supposed that I am an enthusiast in
respect to commerce, and deserve to be classed among that desperate order
of men called merchants, according to the representation which we have
had yesterday from the gentleman from Virginia, I beg leave to make a few
remarks on the abstract question, whether commerce ought to be considered
as beneficial in its relation to the United States. I have long thought
that there was an essential difference between what is, in the common
language of the world, a splendid, and great, and a happy people. I have
been led to think that the situation of the people of the United States,
separated from the rest of the world by an ocean of three thousand miles,
possessing an immense region of land, having full employment for all her
people in the cultivation of the earth--having, from the variety of her
climate and the difference of her soil, the means of supplying herself,
not only with all the necessaries of life in abundance, but with many of
its comforts, and even some of its luxuries--from these considerations, I
have been led to think it had been happier if the American people, when
they became an independent nation, had found themselves without commerce,
and had still remained so. Thus circumstanced, they would certainly
have avoided those dangers which flow from the weakness of an extended
trade, and those luxuries which have hitherto proved so fatal to morals,
happiness, and liberty. In my opinion, we should have been a happier
people without commerce. Among the considerations which have induced me
to believe that this would have been a happy state, is, that we should
have enjoyed a perfect state of safety. We should not have been under
the necessity of conflicting with foreign nations; because commerce,
and commerce alone, can produce those conflicts. I have expressed this
opinion, to show that I have not been led by any particular attachment
to commerce, to take that part which I have declared I would do on the
present occasion. But what was the situation of the American people when
they first found themselves a nation? And what are the duties imposed
upon us by the compact we entered into? As to any abstract opinions we
may entertain on this subject, they ought to have no influence here upon
us. I stand _here_ on other ground, and dare not resist the dictates of
duty. I was astonished yesterday to hear it mentioned by the gentleman
from Virginia, (Mr. J. RANDOLPH,) and boldly asserted, referring to
the constitution, that the American Government was under no obligation
to protect any property of its citizens one foot from the shore. I was
astonished at this declaration, because I could see to what it went. I
saw, if this was the opinion of the Southern States, where it would end.
The situation of this people, when they became a nation, was this: the
Eastern States might properly be said to be a commercial people, as they
lived by commerce; the Middle States were partly commercial and partly
agricultural; the Southern States, properly speaking, were agricultural.
This opposition of character must have created great difficulty in
forming the constitution, and, in truth, this and other points threw
great obstacles in the way of its formation. But a spirit of concession
overcame all difficulties. Is it, however, to be believed, that the
Eastern States, properly commercial, or the Middle, partaking equally of
the commercial and agricultural character, would have united with the
Southern States, if they had been told that commerce was to receive no
protection? No, sir, it cannot be believed. But I take higher ground--the
compact itself, referred to by the gentleman from Virginia. Let us
examine the powers vested in Congress under this compact, and decide
whether commerce was, or was not intended to be protected. If there was
nothing specific in these powers, the first page would show the intention
of its framers. “We, the people of the United States, in order to form
a more perfect union, establish justice, ensure domestic tranquillity,
provide for the common defence, promote the general welfare,” &c. If
we go on to the tenth page, we shall there find the power given to
Congress, “to provide and maintain a navy.” Is the protection of commerce
contemplated here, or is it not? In other parts of the instrument, we
perceive the power to regulate commerce vested in Congress. Will any man
pretend to say that the power of establishing a navy can be exercised
independent of commerce? Every man of common sense knows that a navy
cannot even exist without it.
Having sufficiently established the right of commerce to protection
under the constitution, I come now to consider the resolution under
consideration. We find our rights invaded by foreign nations, and an
attack made by one nation on our carrying trade, which, in my opinion,
cannot be warranted by the law of nations. I shall not condescend to
argue this point. I believe it to be a lawful trade, let whoever may deny
it. I have taken some pains to make myself acquainted with the subject,
by reading several treatises upon it; and, notwithstanding the contempt
with which a certain book was yesterday treated by the gentleman from
Virginia, I will venture to predict that, when the mortal part of that
gentleman and myself shall be in ashes, the author of that work will
be considered a great man. Nor do I judge in this exclusively from my
own opinion, but from the opinions of men of distinguished talents,
from different and distant parts of the Union, who all concur in saying
that the writer has conclusively established the principle he contends
for. Indeed, I could not have believed, had I not heard it, that a
Representative of the American people, in the face of the Legislature,
would have relinquished so precious a principle! But there was a curious
feature in all the luminous discoveries yesterday disclosed to us by
the gentleman from Virginia, in which he strictly observed the rule of
the rhetorician--where a point could not be justified, to get over it as
well as he could. On the impressment of our seamen he said nothing. He
knew that the American feelings would not bear it. When I think of what
is called the carrying trade, I consider it a small evil compared to
this. It has been compared to Algerine slavery, but it is worse. What is
this impressment? Your citizens are seized by the hand of violence, and
if they refuse to fight the battles of those who thus lay violent hands
upon them, you see them hanging at the yard-arm. In the first place, they
are obliged to expose their persons to murder, in fighting the battles
of a nation to which they owe no allegiance. They are obliged to commit
murder, for it is murder to take away the life of a man who has given us
no offence, at the same time that they expose their own persons to the
commission of murder. This is the true point of light in which I have
always considered this horrid and barbarous act, for which, indeed, I
cannot find language sufficiently strong to express the indignation I
feel. This is the situation of our country. Our commerce depredated upon
in every sea, our citizens dragged from their homes, and despoiled of all
they hold dear. We are told we are not to mind these things--that the
nation who commits the outrages is a powerful nation. But really, as an
American, I cannot feel the force of this observation.
The gentleman from Virginia yesterday assumed it as a principle, and the
whole of his argument turned on it, that this is a war measure, and that
its friends are for going to war. Were I satisfied with the truth of this
remark, I should change my mind with regard to the resolution. But is it
a war measure? I believe the same duties and obligations exist between
nations, as between individuals in a state of nature. If my neighbor
treats me with injustice, I have a right to decline all intercourse with
him, without giving him a right to knock me down. If we deem it our
interest not to trade with a particular nation, have we not a right to
say so?--a nation with whom we have no commercial treaty, and towards
whom, therefore, in regard to trade, we have a right to act as we please?
If a commercial treaty existed between us, it would be our duty to
observe it; but, without one, we have an undoubted right to say whether
we have or have not a use for her productions. If, then, this be a peace
measure, why treat it as a war measure? But it is said that it will lead
to war. Britain is said to be a great nation, high spirited, and proud,
and therefore we must not take this step for fear of the consequences.
Trace this argument--see where it leads us. It leads us to this: that,
with a powerful nation we must on no account whatever quarrel, though
she may commit ever so many aggressions on our right. No, we must not,
let her go whatever length she may, until, on this same principle, we
shall be called upon to surrender our independence, because we have to
deal with a powerful nation! If we do not make a stand now against her
aggressions, when or where shall we do it? But one alternative will
remain--to bend our necks, to crouch beneath the tyrant, to submit
without murmur to her insolence and injustice.
FRIDAY, March 7.
_Importations from Great Britain._
The House again resolved itself into Committee of the Whole on the state
of the Union--Mr. GREGG’s resolution still under consideration.
Mr. SLOAN.--I do not rise to deny, but to acknowledge myself one of
those horn-book politicians, alluded to by a gentleman from Virginia,
and to assure this committee that I do not envy or begrudge that member
either his superior genius, talents, or learning; and further to ask on
behalf of myself, and others of this class, the favor of being permitted
to deliver our sentiments on this, and other important subjects, in
such language as we are capable of, until our constituents may have an
opportunity of electing other members, of superior learning and talents,
and farther advanced in political knowledge. This is a favor I hope
will not be denied, otherwise a great number of American citizens, the
remainder of this and the ensuing session, must go unrepresented.
In answer to the assertion that our late conduct respecting Spain was
such as we dare not mention; that we dare not take off the injunction of
secrecy; that we are ashamed to let the nation know the secret--permit me
to assure that gentleman, and this committee, that I feel neither shame,
nor compunction of heart, for the part that I acted in that business,
not doubting that, when the injunction is taken off, and the public
acquainted with the whole transaction, the real friends of the peace
and interest of the United States will fully approve the conduct of the
majority, (with whom I had the pleasure to act,) and which, were I, by
side-glances and insinuations, to endeavor to impress the public mind
with a belief that a majority of their Representatives had acted in a
manner they were ashamed of, I conceive my constituents would thenceforth
consider me unworthy of their confidence, and, consequently, of a seat on
this floor.
We are told that we have no Cabinet. Is it necessary? is it recognized by
the constitution? No! The President’s powers are defined, and have, for
five years, been fulfilled to the satisfaction of the people.
I have heard of British Cabinets, British Ministers, and British Privy
Councils. Of their conduct I formed a very bad opinion, before the member
alluded to was out of his nurse’s arms, and have seen no cause to change
that opinion. It is therefore pleasing to me to hear that we have no such
institution.
Mr. Chairman, however great my gratitude to the member for his paternal
care over the children in politics on this floor, which roused him from
his sick bed to give his superior opinion upon this subject before our
weak and feeble minds had been misled by Tom, Dick, and Harry, or some
other arrogant chap that might have some knowledge of steering a ship
at sea, but totally ignorant in navigating our vessel of State, I say,
notwithstanding I gave all the attention in my power to his eloquent
speech of two hours and forty-eight minutes, there were divers parts
which my weak brain could not comprehend, and which I beg leave to lay
before this committee for the purpose of receiving further information.
1. I cannot comprehend how our demanding the release of our impressed
seamen, and restitution for unjust captures of our vessels, can be
construed as throwing our weight in the scale of France, for the purpose
of supporting a set of men who do not support the public weal of the
United States.
2. Nor can I possibly discover that Great Britain stands precisely in the
same situation that republican France did in ’93. For information on this
subject, let me ask, was it not British gold and British intrigue that
then formed the coalition against republican France? And is it not the
same that has formed the present coalition against monarchical France?
Have the armies of France, in either case, advanced beyond their own
territory, previous to the raising and advancing towards them of powerful
armies for the express purpose of subjugating them, and dividing their
property among the coalesced powers? If the accounts received are true,
they have not.
Before I sit down, let me ask the members of this committee, (especially
you in whose ears the expiring groans of your brethren in arms--of your
beloved fellow-citizens--yet vibrate; slain by the murderous hands of
the mercenaries of Great Britain, or more barbarously deprived of life
by famine or pestilence,) can you, while that same monarch reigns, and
who, instead of diminishing, has added to the long and black catalogue
of crimes set forth in our Declaration of Independence, which induced
you to risk your lives in opposition to his tyranny; can you with
complacency, or any degree of approbation, sit and hear that Government
who continues her tyranny and injustice to these United States--witness
the capture of our vessels and impressment of our seamen--held up by a
member on this floor, as the only barrier we have against the tyranny of
that nation who in our struggle assisted us with vessels of war, arms,
ammunition, men, and money; whose soldiers fought by your side, and
bled to support American liberty and independence, and whose Government
continues friendly towards us? I hope not; I believe you cannot; your
hearts must turn indignant from such language. For my own part I am free
to declare, that, since I have had the honor of a seat on this floor,
I have heard nothing that has so hurt my feelings. I have borne them
in silence. I am happy in obtaining a few moments in my plain unlearned
way to express them, that this committee and all the United States may
know that I retain the same abhorrence against British tyranny that I
did in the Revolutionary war, and also the same love for the liberty and
independence of the United States.
Mr. FINDLAY said he had been long in the habit of observing, that, when a
subject was discussed which occasioned numerous arguments, the question
was often lost sight of. In the heat of debate, instead of the subject
before them, the preceding argument became the text to him that replied,
and his to the next who took the floor, and so on, in succession, until
some member succeeded in calling the attention of the members to the
original subject. Though the present question had but a few days engaged
the attention of the Committee of the Whole, yet, in his opinion, several
of the speakers on the floor had lost sight of it, further than he had
formerly observed in so short a time. He would attempt to draw the
attention of the committee from these desultory excursions, which settle
no point in debate, and often have no visible connection with it, to the
important question they were called upon to decide; and in doing so, he
would take no notice of any thing that had been offered as argument,
which was not necessarily connected with the question. He would neither
be the advocate nor apologist for any one nation of Europe, nor treat any
other nation with irritating contempt. Language of the kind that has been
used within two days past in this House ought not to be admitted, unless
we were employed in discussing a manifesto to support a declaration of
war, and even for that purpose it is inconsistent with national dignity.
He said, the subject before the House was a resolution, referred to the
Committee of the whole House on the state of the Union, to prohibit all
importation of goods the produce or the manufacture of Britain, or any of
the British dominions; not to prevent Britain or her dependencies from
receiving supplies of provisions, raw materials, &c., from us. It does
not go to prohibit exportation; but even this should not be done without
a very sufficient cause. Two causes are assigned in the preamble to the
resolution; first, the impressment of our seamen; second, commercial
aggressions.
Mr. F. asked, Was it ever known, in the history of independent nations,
that any one nation impressed the citizens or subjects of another nation
into their fleets, to fight against a nation friendly to that from which
they had been impressed, and to receive no wages or emoluments unless
they would enlist; which few of them ever do, except under the lash
of the boatswain, which is applied if they appear reluctant to do the
meanest drudgery, and who must of necessity hate the nation for which
they fought? No, sir, this cannot be shown. The British Government has
long been in the habit of impressing their own subjects for seamen. In
France, we have been lately told in this House, conscripts are forced
to the army. Perhaps the conscripts are the same that we have been
accustomed to call the classes of militia in this country; but it is
of their own citizens. Impressments to the navy are a very different
thing. It is such an exercise of tyranny that it is hoped will never be
exercised in this country. Yet, still, except in the case of our seamen,
it is their own subjects: they do not impress Swedes, Danes, or Prussians.
A man impressed is condemned to a slavery of the worst kind. Slavery, for
a limited time, is a suitable punishment for crimes; but the sentence
with us, and in all nations, civilized or savage, is decided by known
and responsible judges to be the breach of some law. But by whom is the
sentence of condemnation to slavery passed on our citizens, sailing under
the protection of our own flag, chargeable with no crime? Not by a court
of justice in any form; not even by an officer of high responsibility;
but by some young subaltern of a man-of-war, which is universally
admitted to resort to the most arbitrary species of government existing.
No other crime is alleged to justify the condemnation, but that he
speaks the English language, or has become an American citizen, and no
other judge but a lieutenant or midshipman selected for this exertion of
tyranny.
We have not long since expressed a just abhorrence of slavery, by a
very unanimous vote of this House; we have expressed a very commendable
sympathy for the untutored sons of Africa, of a different color from
ourselves, stolen or forced from their families and all that is dear to
them; and shall we make no exertions to protect our own citizens from a
worse kind of slavery? If the planters of South Carolina, or any other
State where slaves are employed, should forcibly take any of our sons
from the plough, or other lawful and necessary occupation, and set them
to work with other slaves in raising cotton or rice, the outrage would
be horrid, indeed, but not equal to the impressment of our citizens. The
slave to the planter must labor, but he is not obliged to kill those who
have given him no provocation, or to be killed himself, and he may be
found and redeemed. Money redeemed our captives from the Barbary coast,
and we felt for them, and advanced the price.
There is, sir, another point of view presented in the impressment of
our seamen which ought to address our attention. It is admitted that
several thousand of our impressed citizens are employed on board the
British men-of-war, fighting against France. These, it is believed,
are sufficient to man five ships-of-the-line. If by our silence we
connive at this, or by our wilful neglect of such peaceable means as are
within our power to prevent it, may not this be charged as a breach of
neutrality--may it not be justly called war in disguise? But I forbear.
Commercial aggressions, such as capturing our merchant ships laden with
cargoes of colonial produce, purchased in return for the produce of
our own country and the property of our own citizens, and condemning,
contrary to the laws and usages of nations, as approved and practised
even by the British courts until August last, and openly in her
decisions substituting the instructions of the court in the place of the
law of nations, contrary to her own former practice, by which, it is
acknowledged by the opposers of the resolution, the British courts have
already condemned at least six millions of dollars, of the property of
our citizens, on new principles, which not being known to the owners, it
was impossible to provide against the events. Though these aggressions
have hitherto been principally committed on cargoes of colonial produce,
where only we can find a market for the produce of the Middle and Eastern
States, yet the principles are equally applicable to much of our East
India trade, and to the trade with France, Spain, and Holland, from
which we derive most of the favorable balance of trade, which enables us
to discharge the unfavorable balance of trade with Great Britain; and
she can so apply them without giving notice of her intention at a time
when she knows we have the greatest amount of property on the ocean. We
cannot admit the plea of necessity, as suggested in a well known British
pamphlet, and advocated without reserve by the gentleman from Virginia.
To admit this would justify every possible aggression of the power at war
against neutral nations. We make no war in disguise against Britain; we
favor her as much as in our neutral station and commercial situation we
can do. We bear with aggressions from her that would not be offered nor
borne with from any other nation. The profits accruing from a favorable
commercial balance with other nations is cheerfully thrown into her
lap, and if we do not continue to do so it is her own fault. Justice
and policy require that she should do so. Britain pretends no cause of
complaint against us. We have readily removed such as she ever had. By
pleading necessity, the aggression on her part seems to be acknowledged.
Let her remove the cause.
Mr. EARLY.--Mr. Chairman, it is my intention, in submitting to the
committee those observations which I am about to make, to confine myself
entirely to the merits of the question under consideration.
Upon this, as upon another recent occasion, our attention has been
summoned at the outset of the discussion to what gentlemen choose to
call the spirit of the nation. We are told, that this spirit had been
awakened by the events which led to the introduction of the resolution
upon the table, and had called upon us in a loud voice, to adopt
energetic measures for the vindication of our national honor, and for
the protection of our national rights. The facts, sir, are incorrectly
represented. The people of this nation, identified with the Government
of the nation, will at all times stand ready to support that Government
with the energies of the nation, when a proper occasion shall present
itself. Governed by persons of their own immediate choice, they will
confidently repose in such persons the determination of that question.
Does it follow, that because they have pledged to us the support of the
national energies, if in our judgment they are become necessary, that
therefore we are called upon to take a course which may render them
necessary? It is true that the apprehensions of the public have been
excited lest a period had arrived in which it would be necessary to put
to risk the national peace. Yes, sir, it is too true that alarm has been
spread through every quarter of the Union. But by what means, and from
what sources? It has been by the incorrect views of the nature and state
of the interests at stake, with which our public prints have teemed. It
has been by magnifying representations of the injuries really sustained
on the one part, and on the other, by imposing calculations as to the
sacrifices demanded to effect redress. These incorrect views of the
subject are believed to have been the offspring of mercantile influence.
It is from this source, by these means, and through these channels, that
the public apprehension has been roused upon this occasion. But it is our
duty to unmask the influence which has produced the evil, and to let the
nation know the true state of the question now to be decided. To let them
understand what the injuries are which we are called upon to redress,
and the nature and extent of the interests which we are called upon to
sacrifice in effecting it.
But, Mr. Chairman, the impressment of American seamen by British
cruisers, is held out as one of the objects of redress in the
contemplated measure. This, sir, is a grievance which no man will
attempt to deny or palliate. It is an evil calling so imperiously for
redress, that almost any sacrifice ought to be made, provided it would
answer the purpose. But do gentlemen, can they seriously believe that
this resolution will produce the desired effect? Can it be for a moment
supposed, that a measure at best weak and inefficient--a measure which
in its operation must press with fourfold weight upon ourselves, will
produce any serious diversion in our favor, by increasing the number of
objects, of which you intend to compel the surrender on the part of your
adversary? My fear is that it would only make bad worse, and that instead
of 1,500 seamen impressed on board British ships of war, we should have
as many thousand made captives, and compelled to fight against their own
country.
The resolution under consideration proposes an insurance upon terms
vastly disadvantageous. The premium and the risk are out of all
proportion. What, sir, is the premium? The sum of $800,000, the amount
of revenue estimated to accrue from the carrying trade. What is the
risk? The almost certain sacrifice of the agricultural interest of the
nation--the almost certain event of a war, and the consequent risk of the
destruction of the constitution and liberties of this nation. For one
I cannot underwrite such a policy. I will not pledge my constituents to
insure upon such terms.
But we are asked, must the carrying trade be surrendered? In return we
ask, must the agricultural interest of the country be sacrificed to
preserve it? Must we plunge into a war to preserve it? Must we put to
risk the constitution and liberties of the nation to preserve it?
Mr. Chairman, this nation is at peace. We are happy in the enjoyment of
our rights at home. We are prosperous beyond the example of any other
people in the world. We enjoy the fruits of our own industry, abundantly
supplied with all the comforts of life, and increasing rapidly in wealth
by good markets for our produce. The merchants receive a profit upon
their trade, coextensive with the highest wishes of rational men, and
when confined to fair neutral commerce, pursue their occupations with
security. Is this a state of things which should be put to the risk of
chance for such a boon as the carrying trade? Is this a state of things
which should be jeopardized for the profit of a few merchants in a few
mercantile towns?
Mr. ELMER.--Mr. Chairman, I will rise to make a few observations on the
subject now under consideration, but I will not detain the committee
more than a few minutes. The resolution on your table is denounced
by gentlemen as a war measure, but I cannot discern its tendency to
that point. It is acknowledged on all hands that we have received from
Great Britain repeated and grievous injuries. The whole American people
are alarmed, and their feelings excited by the reiterated acts of
oppression and insult. A gentleman from Georgia has told you that our
constituents have not dictated any measures; it is true, they have not
dictated, but they have complained, and they look up to the collected
wisdom of Congress to devise a remedy for the evils under which they
are laboring. This is the business upon which we are in part assembled,
and it is the most important to which our attention will be called; we
should therefore engage in it with all that seriousness and impartiality
which its importance demands. Every member should divest himself of all
national and party prejudice when he decides on a question in which the
interest of his country is so deeply concerned. And can we, as men and as
patriots, tamely submit to have our seamen impressed, and forced to fight
the battles of a foreign nation, and to have our commerce embarrassed,
interrupted, and perplexed, and the property of our citizens engaged
therein condemned and made the property of the unjust captors? I trust
not.
SATURDAY, March 8.
_Importation of British Goods._
The House again resolved itself into a Committee of the Whole on the
state of the Union, on Mr. GREGG’s resolution.
Mr. ELLIOT.--To replace the present question upon the ground which it
originally occupied, to examine it with a view to its real merits, and
its merits alone, however hopeless might be the task, would certainly
be a very useful one. It has indeed been considered as indicative of a
species of madness to attempt to stem a torrent which is known to be
irresistible; but it is said that there is sometimes method in madness,
and there is always honor in a gallant death in a good cause. It is in
vain to conceal the fact that this resolution is devoted to destruction;
but its supporters owe something to their own feelings, and they owe much
more to their country. It will probably be admitted, Mr. Chairman, on
both sides of the House--for it will not be pretended that there are more
than two sides upon the present occasion, whatever confusion of parties
may sometimes appear to exist upon this floor--that a more interesting
crisis of our national concerns than the present, in reference to
foreign relations, has not existed since the adoption of the present
constitution. Some of the best interests of our country are at stake.
But it is not believed by all that our constitution and liberties are
involved in any possible issue of this question. Before we even had a
constitution, while the elements of our political system were almost
without form, and void, the liberties of this people were safe in their
own hands, and triumphant over the power of that nation whose vengeance,
it is said, we shall provoke by the adoption of this resolution. Our
constitution and liberties are safe. The scene is not so awful, but it
is impressive. I repeat it, sir, we owe much to our country. The friends
of the resolution are prepared for the fate that awaits it; but they
have taken their ground from reflection, and they cannot, they will not
abandon it against conviction, until overpowered, as indubitably they
will be, in the contest.
Two classes of arguments are marshalled in opposition to the motion, one
of which is addressed to our hopes, and the other to our fears. To our
hopes--of what? Of honorable and successful negotiation, if this measure
be abandoned. Great Britain will do us justice if we ask it once more.
On what is this hope founded? Let us not go too far back. It was said in
ancient times to be dangerous, and doubtless it is dangerous still, to
rake open the ashes of a flame not yet extinguished. Do our hopes repose
upon events of recent date? Upon the long-continued impressment into
her naval service of many of our useful citizens, citizens entitled to
the same rights with ourselves, except that they are not delegated to
represent the people within these walls? An outrage which no nation but
Great Britain practises, and to which no nation but America submits. Upon
the constant interpolation of new principles, destructive of our neutral
rights, into the venerable code of the laws of nature and nations, or
rather the systematic perversion and prostration, to our serious injury,
of some of the most sacred principles of those laws. We can soon dismiss
this branch of the subject. Coolly and deliberately systematic, severe
and unbending, has the injurious conduct of Great Britain toward us long
been. Unconnected with strong measures on our part we can discern no
reasonable ground for hopes so flattering. Prospects so delusive have
no charms for the supporters of the resolution. We repose no confidence
upon the justice and liberality of Great Britain, further than as those
virtues may correspond with her interest. To that we wish to make an
appeal. With myself it has long been a settled opinion, that she would go
to war with us whenever it should be her interest to do so. We wish for
peace, we raise our voices for negotiation, but for negotiation sustained
by measures of an energetic and commanding character.
Mr. D. R. WILLIAMS.--Mr. Chairman, I feel the necessity of apologizing to
the committee for that portion of their time which I shall occupy; not
presuming to offer reasons to others why this resolution should not be
adopted, I beg their indulgence, while I do that which presents itself at
the time as a duty, to declare what are my reasons for voting against it;
the deep stake my constituents hold in the measure is my apology.
Such is the magnitude of the subject under discussion, spreading itself
over a prodigious extent, running to the heart of some of our most
valuable institutions, subverting unmeasurably the plighted faith of the
Government, and overturning the foundations of a considerable portion
of our revenue, that I feel myself inadequate to trace its influence
over even a ramification of that vast interest it lays hold of, much
less do I pretend to a view of the whole ground; but, imperfect as that
comprehension is, it takes in much more than sufficient to fill me with
fear and trembling for its consequences.
We have heard, during the last three days of the present discussion,
a great deal said about the spirit of the nation, and that it demands
energetic measures. Sir, I ask the gentlemen who urge this as an
argument, if there had been as much pains taken to apprise the nation
of its true position with Great Britain as there has been to alarm
it, whether its anxiety would not have been, at least by this time,
quieted? If gentlemen, standing in such a responsible situation to their
constituents, as they do upon this floor, had, instead of urging war
measures, spoke out the plain language of truth, that at the date of Mr.
Monroe’s last despatches, Lord Mulgrave had acceded to his request to
enter upon an examination of the dispute between the two Governments,
whether they would now venture to represent the spirit of the nation as
excited in every part of the continent? I presume not. But whence do
they learn that this spirit is so excited? It is true we have received
spirited resolutions from two towns in Virginia, and a few well-written
memorials from a few merchants at a few of the seaport towns refuting
the British doctrine; but what else do they say? At Baltimore they
believe “redress for the past may be found in amicable explanations.”
From Philadelphia you are called upon for a naval force for the West
India station. Why? To defend their trade in St. Domingo, I suppose,
for that appears to be the pith of the memorial. The merchants of New
York pledge themselves to support “all measures _adapted_,” reserving to
themselves the right to judge--not such measures as may be adopted by
Congress. From Boston “a special mission” is recommended. The inhabitants
of the town of Salem tell you “they wish to take no part in the contests
which now convulse the world.” Where else than from these documents do
gentlemen find the spirit of the nation? Certainly not from the Cabinet,
nor from the Executive, for if it were good authority to talk about
what we hear out of this House, they have no such wishes. Is it fair
then to force the passage of this resolution by attributing that to the
nation which perhaps it does not feel; which it certainly would not, if
it were fully apprised of its situation abroad, and which the memorials
on your table do not speak? Does the resolution provide for “amicable
explanations,” for a “special mission,” for a squadron on the West India
station? No such thing, sir.
In arguing this subject it is material to ascertain what is the true
cause of our present dispute with Great Britain, and to what extent it
goes. I say cause of dispute, because it strikes me that, had not the
present difficulty arisen, her insults offered in the impressment of
our seamen, were in train for amicable adjustment, and will be arranged
when the present uneasiness shall be quieted. It cannot be unknown to
gentlemen that an investigation of that subject was nearly completed, and
in fact would have been, but for the hasty departure of our then Minister
from the Court of St. James.
It is taken for granted that the present aggravations originated in
her attempts to cramp, say destroy, if gentlemen like it better, our
carrying trade. This is the grand pivot on which the whole machinery of
national honor, and dignity, and wrongs, and insults, is made to turn.
Yes, sir, this carrying trade which Spain and Portugal once shared, but
could not retain; which Holland attempted to monopolize; which Van Tromp
and De Ruyter fought for, but which she was obliged to relinquish; this
carrying trade is the bone of contention for which the sweat, the blood,
the lives and fortunes of the American people are to be lavished in
maintaining. And what is this carrying trade? Is it any thing different
from a partial right, which but a very small part of the community can
enjoy, which but a small portion of that part do improve? Is it not a
right which is still problematical--whether the exercise is of real
national utility? There are many who believe it has been of no solid
advantage to Great Britain herself, notwithstanding she has possessed a
much greater share of it than any other nation. Certainly it has been
the cause of several long and ruinous wars to her, and if we look back a
little upon our own experience, we shall see it has been the germ from
which has sprung all our difficulties with that Government since the
commencement of a political hurricane--the French Revolution. Since that
period our commerce has become a rival of increasing strength with that
of Great Britain, and finding it to grow in this branch above competition
to the exclusion of hers, she has commenced a system to counteract it,
and has commenced it, I have no hesitation in saying, mildly, to what it
will progress, if we drive her to it. Gentlemen are surely not unmindful
of the untamable pride of that Ministry; they cannot forget that it is
formed of men who never do acts of aggression by halves, and who feel
no other restraints than those of power. National rights, injuries,
and insults, are not graduated on the scale of their policy. The only
inquiries with them are, Can we gain by the war? Is this the time to
strike the first blow with the most effect? I need not give an instance
of this fact. If Great Britain ever had waited for a just cause of war,
that is, when she wished for it, we might console ourselves with our
safety in agreeing to this resolution; but it is well known that she
never did, and in my opinion, with her present Minister, she never will.
The committee now rose, and had leave to sit again.
MONDAY, March 10.
_Importations from Great Britain._
The House resolved itself into a Committee of the whole House on the
state of the Union, on Mr. GREGG’s resolution.
Mr. CLARK.--A sense of duty, prevailing over personal inclination,
compels me, Mr. Chairman, to offer a few remarks on the subject under
consideration. The measure now under discussion appears to me to involve
the best interests of our country; the prosperity, the happiness,
and the liberties of America tremble before it. In the hands of the
resolution are contained the issues of life and death, and it would be
criminal in me not to throw in my mite to rescue our common country
from the impending danger. The course which I shall take will differ in
some degree from that pursued by those who have spoken in opposition to
the resolution. I shall not attempt to draw any marked discrimination
between the varying interests of the country, or invidious distinctions
between the agricultural and commercial interests. I think they are so
essentially united, that one cannot fall to the ground without tumbling
the other headlong into ruins. I shall consider the subject relatively
to its general policy, and whether, on the principles of that general
policy or conditional compact, as has been contended by gentlemen, we are
bound to adopt the resolution. If I shall succeed in convincing a single
gentleman now in favor of the resolution, that we are not bound by the
constitution, and that it will be impolitic to adopt it, I shall consider
this amongst the happiest events of my life.
The great objects of our federal engagement, in forming the compact
under which we now live, were to establish justice, ensure domestic
tranquillity, and provide for the common defence and general welfare
of society. Under this constitution gentlemen call upon us, under the
pretext of promoting the general welfare, to adopt a resolution which
manifestly goes to the promotion of a minor interest. This compact, in
providing for the general welfare, must mean that of the whole, or at
any rate, of the larger portion of the community; it was never designed
to promote a subordinate interest at the sacrifice of the general
prosperity. Are we then bound by the constitutional compact to adopt this
resolution? I think not. Thus much as to the constitutionality of the
question.
I must consider this resolution as a war measure, and viewing the policy
and present situation of Great Britain, against which it is pointed,
I have no hesitation to say, that in my opinion, it will produce
instantaneous war. A maritime war, for such a one she will wage, will
not add one item to her present expenses; neither will it embarrass her
measures on the continent? It can have no such effect. She has eight
hundred ships on the ocean, flushed with victory and conquest, and a
part of her navy is at this moment triumphantly sailing almost in sight
of your shores, ready at any moment to seize, should that course appear
expedient to her, all our vessels navigating the ocean. It cannot affect
her continental operations. The war she will wage, will be altogether
maritime. Her navy cannot be essential against her continental enemies
in Europe. Already have their fleets been annihilated. The victories
off Trafalgar and in the West Indies, have cleared the ocean of almost
every sail, and there remains no employment for her navy but to depredate
your commerce; and she will do it, you may rely upon it. Those are but
indifferently acquainted with Great Britain and the genius of the first
Minister, who suppose all the power in their hands will not be made use
of. Gentlemen tell you this is not contemplated as a permanent system of
commercial arrangement, but a temporary expedient, which by its pressure
is to bring our rival to a sense of duty, and make her do us justice.
But this temporary measure will have on Britain all the effect of war.
Declare war to-morrow, and it can only affect her trade. Can you believe
that she will, with all her advantages, remain quiet? It is not her
character; she will not do it. I should think contemptuously of her if
she should. Will she suffer you to take war measures and not retaliate?
Will she be more afraid of you with your four thousand troops, dispersed
over the whole western country, and your thirteen armed vessels rotting
in the Eastern branch, than of that power whose conquering arm has
extended the limits of his sway beyond former comparison, and whose
ambition is bounded only by the habitable world?
Mr. EPPES.--After the discussion which has already taken place on this
subject, I shall not consider myself authorized to occupy much of the
time of the House. As, however, I have on some occasions ventured to
express my opinions on this floor, I cannot reconcile to my feelings a
silent vote on a question interesting to the people of the United States
generally, and particularly so, to that portion of country which I in
part represent.
Whatever difference of opinion may prevail within these walls as to
the course which ought to be adopted towards a nation which under the
pretence of right has commenced a system of warfare and pillage on our
commerce, I hope for the honor and interest of our country we shall
finally unite in something. If in a free country there is any principle
which ought universally to be admitted, to enforce which reasoning or
demonstration should be necessary, it is, that every class of citizens
is equally entitled to protection. To secure to man his personal rights,
and the fruits of his honest industry, are the two most important objects
of a free Government. The Government unwilling to use for that security
the means of which it is possessed, does not deserve the support of
freemen. Our constitution makes no discrimination between different
classes of citizens, nor can we in our legislative capacity. The citizen
whose capital is vested in a ship has an equal right to protection in
using for his benefit and happiness that ship, with the cultivator of the
soil in using his plough. To arrest by violence his ship, and confiscate
his property, is to the merchant the same injury as it would be to the
farmer to arrest his plough and destroy his crop. In each case the
citizen must look to the community for the removal of every obstruction
thrown by violence in the way of that perfect freedom in the use of
his property which constitutes its value. It is true, and no man will
deny the correctness of the principle, that every nation has a right to
abandon any particular commerce injurious to its interests or dangerous
to its safety. This is the natural right of all nations, and particularly
of free countries, where the general welfare of the community is the
supreme law. While, however, a commerce remains lawful, the citizen
embarks in it with the same right to expect protection as in any other
lawful occupation; for a Government to refuse it, is a violation of that
fundamental principle in free government; that protection on the part of
the Government is the basis of support on the part of the citizen. If
we are unable or unwilling to interpose in behalf of our citizens, when
their personal rights have been invaded--their property captured and
condemned under principles unknown to the law of nations--let us give up
the farce of pretending to self-government, and go back to the degraded
state of colonies.
The ground of difference between the United States and Great Britain is
too well known for me to dwell on this part of the subject. It has been
stated on this floor by a gentleman from Massachusetts, in terms clear,
forcible, and manly. The impressment and detention of our seamen is an
injury which has justly excited the indignation of the people of America
for the last ten years. Every attempt to arrest by negotiation this
serious injury has failed, and each year adds new victims to the roll of
impressed seamen. The recent captures of American property to the amount
of six millions of dollars, under doctrines new and manifestly unjust, is
a serious injury to the individuals and to the community. And although I
have no doubt, as has been eloquently stated on this floor, that American
merchants have in some instances disgraced that character by covering
the property of the enemies of Great Britain, I am equally certain that
the injuries done to _bona fide_ American merchants, trading fairly on
American capital, are sufficiently numerous to justify and demand the
interposition of this Government.
While, however, I have no doubt as to the right of the citizen on the
one hand to demand protection, and of the duty of the Government on
the other to extend it to him, I am willing to acknowledge all the
difficulties of our present situation. I consider it no disgrace to this
infant nation to say we are not able to meet on the ocean a nation--a
match on that element for all the world combined. I hope the period will
never arrive when the substance of the citizen here shall be squandered
on a navy competent to meet on the ocean the navy of Great Britain.
Separated from the rest of the world, at too great a distance to fear
invasion, possessing a country abounding with productions valuable to the
different nations of Europe with whom we have commercial relations--if
we are not able to meet on the ocean Great Britain or any other European
power, we can say to them all, Respect in your intercourse with us the
principles of justice, or we hold no intercourse with you; if you will
not traffic with us on principles that are fair, we will neither receive
your manufactures, nor send to you our productions. We are now for the
first time about to test this principle so important to a nation jealous
of fleets and armies. Of the various measures of the kind which may
be resorted to--high discriminating duties--a prohibition of certain
enumerated articles, a general prohibition, and as a dernier resort a
suspension of all intercourse, are the remedies within our reach. It
is a mere question of convenience and expediency to which of these we
shall resort. I should prefer for myself, as a first step, the mildest.
It is not, in my opinion, the interest of this nation to dissolve at a
single blow its commercial connection with Great Britain. The commerce,
if carried on, on principles that are fair, is mutually advantageous
to the two countries. In Great Britain we find the best market for our
most valuable productions, and with us she finds the best market for her
manufactures. To prohibit, at a single blow, imports to the amount of
thirty-five millions of dollars, however injurious it might be to the
manufacturers of Great Britain, would certainly be a serious injury to
our own citizens. I cannot but hope that a milder measure will cause the
British Government to respect our rights and pursue a course manifestly
dictated by a regard to its own interest. If, however, Great Britain is
so lost to her own interest as to persevere in a system of injustice
calculated to deprive her of the best market for her manufactures--a
market daily increasing, with the increasing population of this infant
country--let us on our part proceed with that caution and moderation,
which shall evince that the course we are determined to pursue is founded
on principle, and will never be abandoned until our wrongs are redressed.
I am willing to adopt for the present a prohibition of enumerated
articles; if that shall fail, to pass hereafter a total prohibition, and
finally, to put forth our whole strength, and say, we hold no future
intercourse with you; but dissolve for ever all commercial relations
with a nation, which takes for its national law the base principle of
necessity, and makes itself the exclusive judge of that necessity.
Mr. NICHOLSON said he had been desirous for some days to offer to the
committee his opinions on the subject now under consideration; but as
other gentlemen had manifested a similar disposition, he had yielded the
floor to them. It was now his intention to offer such remarks as appeared
to him pertinent.
The resolution of the gentleman from Pennsylvania, (Mr. GREGG,) in his
opinion, was objectionable in all its parts. There was no point of
light in which he could view it, in which objections did not present
themselves. He read and commented on the preamble; the style of which
he said he did not like, because, instead of a spirit of amity and
conciliation, it breathed little less than defiance. While we profess
to speak the language of peace, we declare to Great Britain, that
unless she will meet us at that precise point which we think proper to
mark, we will, in the words of the gentleman from Pennsylvania, stab
her in the vitals. While we declare that we approach her as friends,
yet our style is that of an enemy. The olive branch that is held out
conceals a dagger in its boughs. This threatening manner he said was
not calculated to preserve peace in private life, and how could it be
expected to succeed between nations? Did gentlemen imagine that Great
Britain, even surrounded as she was by her enemies, was yet so tame as
to submit to threats? Was the character of her first Minister so little
known, as to induce a belief that he would tremble at the rod held over
him? No, sir, they are not sunk so low; and if we really wish for an
amicable adjustment of our differences, we ought to proceed as friends
and not as enemies. A mere commercial regulation, he said, might not,
perhaps, produce war; it was the threat held out in the preamble, and the
hostility manifested on the floor of the House of Representatives, that
were calculated to wound the national pride of Britain, and, therefore,
to excite enmity between the two countries. What does the preamble say?
We have marked a point from which we will not recede, and to which
we demand that you shall come; if you do not, we strike at your most
essential interests; in the language of the gentleman from Pennsylvania,
we will stab you in your vitals. Is this the way to conciliate? Is
this your method of opening a negotiation? Believe me, sir, instead
of presenting the olive branch, we carry a firebrand that will kindle
a flame which we may find it difficult to extinguish. Great Britain
will feel all this--she will at once ask, is it fair, is it manly, is
it honorable to threaten me now, when I am contending for all that is
dear to me? Will you insult me in my distress, and while you sustain my
enemy on one hand, with the other endeavor to unnerve the arm which you
acknowledge is raised in defence of its own existence?
If the subsequent parts of the resolution were unobjectionable, the
preamble itself would determine me against the whole. To preserve peace,
let us proceed to our object in a peaceable manner. If, indeed, gentlemen
are for war, then they are right in advocating this measure.
The resolution, he said, embraced two points: the one related to the
carrying trade; the other to the impressment of American seamen. The
latter had always been a source of great anxiety to him. No man in
America had deplored the evil more than he did, and none should be more
ready to apply the remedy, when an effectual remedy could be devised.
To him, however, it was a matter of no little surprise, that gentlemen
had so long slept upon a subject, on which they now appeared to manifest
so much zeal. He himself twice proposed measures with a view to obtain
redress, but he had not been able to carry them through the House.
Gentlemen, who now zealously volunteered their services, rendered him
no assistance then. At the last session he had introduced a bill on
the subject, and such were the variety of objections to it, that it
was committed and recommitted several times. Difficulties presented
themselves from all quarters; alterations and amendments innumerable were
adopted, until finally it was shuffled through the House, in so imperfect
a state that it was not worth the time which had been spent on it. Strong
measures were not then the order of the day, nor would they be now, if
the impressment of American seamen was the only ground of complaint.
Great Britain has pursued this practice for ten or twelve years past,
but these patriotic merchants, who are now so clamorous, presented you
with no memorials on the subject. No, sir. It is the carrying trade
alone, which has covered your tables with the memorials of the merchants,
because their interests are affected, and it is out of this that the
resolution of the gentleman from Pennsylvania has grown. Although I do
not admit the correctness of the principle assumed by Great Britain, in
relation to the carrying trade, yet I am willing to acknowledge that with
me it is an object of secondary importance only, when compared with the
other violations of our flag, in the impressment of our seamen.
I have thus endeavored to show with what success the committee must
determine, that, by adopting this resolution, we hazard a war; that
the course of commerce will be materially, suddenly, and, therefore,
injuriously changed; that inasmuch as we cannot procure from other
countries many important articles with which Britain supplies us, the
revenue will be much diminished; and that the value of our own products
will be lessened to an incalculable amount. Having been a considerable
time on the floor, I feel extremely exhausted, and will, therefore,
close my remarks, although it was my wish to have said much more on this
subject; particularly to point out the different effects to be produced
by the adoption of the measure now under discussion, and that which was
submitted by myself. To my own proposition, however, I am not exclusively
attached. I have thought and do still think it the best which has been
proposed. This I trust will be the opinion of the House. Believing the
conduct of Great Britain towards this country not to be justified, I am
willing to unite in such measures as may induce her to do us justice. But
I will not go to the extent proposed in this resolution, because I am
persuaded it will operate much more injuriously upon ourselves, than upon
those whom we intend to affect by it.
Mr. MACON.--Mr. Chairman, I feel myself bound by the call which has
been made by three gentlemen from Pennsylvania, (Messrs. GREGG, SMILIE,
and FINDLAY,) with whom I have long been in the habit of friendship, a
friendship on my part sincere, to state the reasons which will govern my
conduct on this occasion; whether they may be satisfactory to others or
not, they are perfectly so to me. That a difference of opinion subsists
between the members with regard to the measures best adapted to the
present crisis of our affairs, is evident from the number of resolutions
on your table. An attempt has been made to liken this resolution to one
agreed to in 1793; but are they alike? I think not. That was general, and
operated alike on every part of the Union, while this, in my opinion, is
special, and will only operate on one part of the Union; and this partial
operation will be severely felt by that section of the country which I
in part represent. Besides this clear difference in the two resolutions,
will not all the three gentlemen agree that there is a great and striking
difference in our affairs with Great Britain--in 1793 and now? Her
motives may be as unfriendly now as then; but I speak of facts known to
all, not of motives; she then held the western posts, she then detained
an immense property belonging to the Southern people, both in violation
of the treaty of peace. She then instigated the Indians to war on the
frontiers, and then, as at this time, impressed our sailors and captured
our vessels; besides, the United States had not then relinquished the
principle, that free ships should make free goods. In relinquishing this
principle, they, in a great measure lost sight of the carrying trade,
by peaceable means; but, if gentlemen wish to turn to Europe, they will
find that, in 1793, the treaties of Pavia and Pilnitz were in force. Let
the facts which I have stated be compared with those of the present day,
and all must confess that there is a very considerable difference. I
have said this much to show that there is no analogy in the facts of the
present time and those of 1793, and that there is no change of opinion in
me. If, however, I am mistaken, it is an honest mistake.
This nation, in my opinion, must take her choice of two alternatives: to
be happy and contented without war, and without internal taxes; or to be
warlike and glorious, abounding with what is called honor and dignity,
or in other words taxes and blood. If it be the first, the people will
continue to enjoy that which they have hitherto enjoyed--more privileges
than have fallen to the lot of any nation with whose history we are
acquainted; they will, as they have done, live plentifully on their
farms, and such as choose, will carry on a fair trade, by exchanging
our surplus productions for such foreign articles as we may want. If we
take the other ground we shall, I fear, pursue the same career, which
has nearly, or quite ruined all the other nations of the globe. Look
at the people of England, legally free, but half their time fighting
for the honor and dignity of the Crown, and the carrying trade, and see
whether they have gained any thing by all their battles for the nation
except taxes, and these they have in the greatest abundance. Look also
at France, before the Revolution, and we shall see a people possessing
a fertile country and fine climate, having the honor to fight, and be
taxed as much as they could bear, for the glory and dignity of the _grand
monarque_. Let us turn from these two great nations, and view Switzerland
during the same period; though not powerful like the others, we shall
see the people free and happy without wars, contented at home, because
they had enough to live comfortably on, and not overtaxed. The history of
these three nations ought to convince us that public force and liberty
cannot dwell in the same country.
I mean not to impute improper motives to any one, nor to examine the
Journal after changes, though I am perfectly willing to have it thumbed
over, from the day I took a seat in the House to the present, after my
name; and if, on examination, it shall appear that I have changed my
political principles, or have not uniformly adhered to them, I am willing
to bear the name of a political hypocrite. I have formerly been, on very
great questions, in very small minorities; on a most important question,
in a minority not sufficient to command the yeas and nays. I will say no
more on this subject; nothing can be more disagreeable than to talk about
one’s self, and nothing could justify it but the call which has been
made; perhaps I have already said too much on it, but it was impossible
to say less.
The dispute with Great Britain is most unquestionably for the carrying
trade; a trade which is less beneficial to the nation than any other, and
a trade which has produced most of our disputes with foreign nations, and
it is the only trade that requires expensive protection. Will any one
contend that this trade is half as important as the coasting trade? This
cannot and will not be contended, for every one knows that the coasting
is the best trade. It not only exchanges the products of one part of
the nation for those of another, but it also tends, by making us better
acquainted with each other, to connect us more intimately, and to make
every part harmonize for the public good. The trade which I consider
the next best for a nation to carry on, is the direct trade for home
consumption, by which the surplus produce of one country is exchanged
for that of another; and in this as in every branch of trade, this great
rule will be adhered to--buy cheap and sell dear if you can. With the
coasting and direct trade agriculture is more nearly connected than with
any other. But a nation may be agricultural without being commercial. The
Swiss cantons and Milan were of this description, and it may be remarked
that Milan is the most populous country in Europe. China is said to be of
the same character; but, as little is known of that country, I shall not
quote it to establish a fact which is clearly established by the other
two. A country may also be commercial without being highly agricultural,
as was the case with Venice and some other European powers. But let us
pursue that system which our own experience has proved to be the best for
the United States; for, since the adoption of the present constitution,
and before this day, we have had trying times. It will be remembered,
that during the French Revolution, we had complaints against France. Her
government issued orders of which we justly complained; one of them, I
believe, declared all the productions and manufactures in Great Britain
to be contraband of war; this, if executed, would have nearly cut off
all communication with a nation with whom we carried on the greatest
trade. What did we then do? We sent ministers to France, with two of
whom she refused to have any intercourse, but pretended to be willing
to negotiate with the other. All the ministers finally returned home,
and we took half-way measures against her, which are the worst of all
measures, and which produced a sort of half war, which I believe injured
us more than her--for besides the actual expense, which may be estimated
at not less than $10,000,000, it nearly ruined the agricultural people by
reducing the price of produce; flour it reduced from twelve and fourteen
dollars per barrel to six; and tobacco, from ten and twelve dollars per
hundred to three; and it had no doubt the same effect on other articles
of exportation. And how were we relieved from these evils? We again
sent ministers, who were received, and they made a treaty. Besides what
has been before stated of the conduct of Great Britain, it will not be
forgotten that she declared all France in a state of blockade, and this
order would have cut off all commercial intercourse with her, who then
wanted much of our produce. To Great Britain, also, a minister was sent,
and he made a treaty. I am now desirous that the same steps should be
pursued before we adopt decisive measures. We once laid an embargo, of
which we tired. This shows the necessity of acting cautiously, and of
taking no measures which we cannot adhere to. All the gentlemen who
have supported the resolution now under consideration, have expressed
doubts whether it would produce greater effects on Britain or ourselves.
This is surely doubting its policy, and if its policy be doubted by its
friends, what ought to be the result of our inquiries, especially when
it is believed that its adoption will materially injure one part of the
country, and that part entirely agricultural? Does the public good, about
which we have heard so much, require that a measure which its friends
seem to think of doubtful policy, ought to be adopted, when none can
doubt but it will injure, if not sacrifice, the real interest of a part
of the community? Examine the report of the Secretary of the Treasury,
and it will, at one glance, show from what quarter the great export is
made to Great Britain; cut off the import, and you will lessen the price
of the export, if it shall be exported. But we are told that we are
bound to protect commerce, meaning, I suppose, that this resolution must
be adopted. Then if we are really bound, and there is no discretion,
nothing of expediency, there is no occasion for this investigation. But
gentlemen well know, that on every question, discretion may and will be
exercised. But have we really done nothing for commerce and navigation?
On this subject I can confidently appeal to those most interested.
What, since the adoption of the present constitution, has made this the
second commercial nation in the world? Before that we had but little
claim to the character of a commercial people. Have not the protecting
duties on the tonnage of foreign vessels, and on goods imported in them,
produced the effect? They have secured to our vessels the carrying our
own productions, which encourages navigation in proportion to their bulk.
Let gentlemen inquire the number of cargoes which tobacco and cotton
alone furnish the American vessels. Besides this encouragement given to
navigation, has not a law been passed to favor the fisheries, and thereby
to form sailors for the use of the merchant service? It may be right
here to observe that I neither approved nor voted for that law, but no
attempt has ever been made to repeal it. This is the encouragement by
which, during a time of peace, we have become the second commercial
nation in the world, and this too in the short space of time since
the adoption of the present constitution--say, if you please, since
the 3d of March, 1789. One consequence, a little curious, is produced
by this encouragement, which is this: When Europe is at peace, the
protecting duties prevent any competition by foreign vessels to carry
our productions, and when at war, so many of our vessels carry for the
belligerent nations, that freight is nearly as high with us as it is
with them, so that what the agricultural people pay in time of peace to
encourage, they lose the benefit of when Europe is at war, and when it is
most wanted.
Among the arguments urged to show the effect of this measure on Great
Britain, one is that it will ensure us a powerful aid in that country;
that the British merchants and manufacturers, whose interests will be
seriously affected, will give you all their assistance. This argument has
been completely answered by a gentleman from Georgia, (Mr. EARLY.) But
if gentlemen really calculate to make friends on the other side of the
water, it seems to me that a different plan would produce more effect.
Cut off all intercourse between them and us, and adhere to the plan long
enough, and you will find the merchants and manufacturers of England
joined by all the inhabitants of the West Indies, to have the intercourse
opened. The Assembly of Jamaica have acknowledged that they cannot get
supplies in plenty except from the United States; but this plan would
operate as much on beef, pork, fish, and flour, as on tobacco or cotton.
But this would be too strong for them, while they are desirous to adopt
a measure which will have the same effect on cotton and tobacco. What
is this but a sacrifice of a part of the agricultural interests of the
country to what they believe will be a protection for the carrying trade?
I should like it quite as well if the attempt was not to be made solely
at the risk of one part of the Union. The evil is felt in one part, but
the remedy is to be applied in another. Adopt general measures, which
will operate equally in every part of the country, and if the shoe is to
pinch, let it pinch all alike, and all will then be willing to have it
off as soon as possible.
I am willing to acknowledge that a dollar got by this carrying trade,
and made the property of the nation, is just as good as a dollar got
any other way, even by the cultivation of land. But does it follow from
thence that you are to make more sacrifices to get the dollar in that way
than it is worth? I think not. The adoption of the resolution, besides
its unjust and partial operation, will considerably affect the revenue,
and no ways and means are proposed to meet any deficiency. On the present
question we risk a revenue of ten millions of dollars raised on the
consumption of foreign articles in the Union, to gain--what? (I speak
only of revenue) an additional sum of $850,000, which additional sum
you will lose as soon as you depart from your neutrality. It is asked
again and again, if we have not a right to the trade about which so much
has been said? If the doctrine that free ships should make free goods
had obtained, there could be no doubt on the question; but I mean not
to examine the right but the effect of the resolution; nor do I mean to
deny that the trade is of some use to the nation. Merchants would not
so anxiously pursue it, if they made no profit by it; and their profit
adds to the national stock, and may affect the price of native articles
offered for sale. I am also willing to acknowledge that a cargo of flour
or any other native production sent to the West Indies, and there fairly
exchanged for sugar, and the sugar brought home, that the sugar is as
much ours as the produce of our own soil, and this sugar so obtained we
have a right to carry to those that may want it. But the question before
the committee is not a question of right, but of expediency. Is the
protection which will be given to this carrying trade, by the adoption
of the resolution, of that sort and of such certainty, as to justify the
adoption of a measure, which will operate excessively hard on one part
of the Union? The right of deposit at New Orleans before we purchased
the country, was certainly as well established as our right to carry
coffee and sugar to France and Spain, or any where else--it was a right
acknowledged by treaty. But when the deposit was refused, what did we do?
we took pacific measures, and succeeded. We heard then much about honor
and dignity, and that it was our duty to enforce our right by arms; but
notwithstanding all this, we adopted no measure like the present; we then
acted for the general welfare. Does it follow, because I am opposed to
the resolution, that I am unwilling for our citizens to own vessels? It
does not. I am willing they may have as many as they please, and do as
they please with them, so that they do not involve the nation in war by
them. On this subject the interests of the husbandman in New Hampshire
and Georgia are the same.
The gentleman who introduced the resolution expressed a wish that no
party or geographical feelings should be brought into the debate. If
there was no cause for geographical feelings, why then wish, or why
anticipate them? Let the report of the Secretary of the Treasury be
examined, and it will be seen that there is cause for this feeling;
indeed, the statement, made from that document by a gentleman from
Georgia (Mr. EARLY) must have convinced all of the partial operation
of the resolution. On the first page of the report it appears, that
the annual exports to Great Britain and her dependencies are estimated
at about $15,690,000, of which sum, tobacco and cotton alone make
$8,860,000; it also appears, that we exported to the dominions of
Great Britain in Europe, for each of the three years ending on 30th
September:--in 1802, the sum of $12,066,521; and that cotton, tobacco,
rice, pitch, tar and rosin, made of that sum $8,485,762; in 1803, the sum
of $16,459,264, and that the same articles made of that sum, $11,912,493;
in 1804, the sum of $11,787,659, and that the same articles made of
that sum, $9,443,807. These articles are selected, because they are
the produce of one section of the Union. The same part of the country
produces the following articles in common with other parts of the nation,
but the proportion of each is not known:--flour, wheat, beef, pork,
staves, heading, boards, plank, scantling, timber, flaxseed, skins,
wax, hams, bacon, turpentine, spirits, lard, and Indian meal, and I may
add, pickled fish; some of these articles are carried to the Middle and
perhaps to the Eastern States, and are there exported, or consumed; and,
if consumed, enable them to export more of their own productions.
It has also been said, that if we adopt the resolution, and cannot get
what we want from Great Britain, we will manufacture for ourselves. This
sounds well on this floor, but I very much doubt the practicability of
making this nation manufacture for itself, while we have land enough for
every industrious citizen to become a landholder, and a cultivator of
the soil. Connecticut and Massachusetts have tried the experiment, and
both without success, and both on articles in which it was most likely
to succeed; if these States, with their population, could not succeed,
what chance of success is there in other States? The practicability
ought to be satisfactorily shown before we enter on the plan. It may, as
has been said, prevent our wives from wearing silk gowns, and ourselves
from wearing broadcloth; whether it will produce this effect is quite
uncertain; fashion is as great a tyrant as any we have to contend with;
it will, I fear, be difficult to destroy its influence by legislating.
The gentleman from Pennsylvania (Mr. SMILIE) and myself, plain as we are,
are both obliged in some degree to yield to it; we can no more contend
with it, than we can fly to Europe.
I come now to that part of the subject where every man must feel the
injury done to his fellow-citizens; I mean the impressment of our seamen.
Is there a father who does not feel this? No; not one in the nation; and
that man who shall devise a certain remedy for this evil, will deserve
the thanks of his country; he will, indeed, be its greatest benefactor;
he, like the impressed sailor, will have a place in the tenderest part
of the hearts of his countrymen. If a plan to prevent this injury was
only made known, the very knowledge of the plan would put an end to the
injury. But can gentlemen seriously believe that the adoption of the
resolution will produce this effect? The means are not adequate to the
end, I conceive; at least, it remains to be shown that they are. I will,
without hesitation, state what I believe to be the best remedy for the
evil. It is this: to agree with Great Britain that neither country shall
employ the sailors of the other; and to agree, also, on the proof that
shall be required on both sides; we might expect that Great Britain would
adhere to an agreement of this kind, because it would be her interest
to do so, and on her interest alone, I should rely. In considering this
subject, we must look at things as they really are, and not as we would
wish them to be. The British Government exercise the right, or rather the
power, of impressing their sailors; and, I believe, in time of war, of
prohibiting their going into foreign service. Under these circumstances,
it may be advisable for us not to employ them, notwithstanding we may do
it with their consent, especially if it would prevent their impressing
our countrymen. If the merchants really be the friends of the American
sailors, they would willingly agree to such a regulation. If they would
not be willing, is it not clear they would employ British sailors at
the risk of having ours impressed? On this subject it might not be
improper to state that I have been informed, in some parts of the world,
certificates of persons being American citizens are sold, and that
the market has been well supplied. I have also been informed that a
British officer in Philadelphia actually procured one for the purpose
of enabling him to go home. This favored Great Britain. I have given
this information, to show that others, besides citizens, may obtain
certificates. Impressments, I fear, can only be prevented by negotiation;
indeed, I have heard that the two Governments have been engaged on this
interesting subject. I hope it will be resumed, and that it will end in
securing to our countrymen their safety on the ocean.
We are told that the nation calls for strong measures, that the President
has recommended them, and that men of the greatest talents think them
requisite. This may be true, but as I have neither seen nor heard of
this call of the nation, and as I do not know the opinions of others,
I shall certainly pursue my own. The first Message of the President to
Congress, most unquestionably pointed as strong towards Spain as it did
to Great Britain; and, hitherto, but little has been said about the usage
we received from her. But the recommendation of the President alone, is
not always a good reason for legislating, I apprehend, because every
President has recommended subjects for the consideration of Congress,
on which no act was ever passed. If ever the liberties of this nation
are destroyed by strong measures, it will be when the recommendation
of the President shall alone be deemed good cause for their adoption.
At present, we have choice of all the resolutions on the table,
notwithstanding all that has been said in favor of the one now under
consideration. No doubt can be entertained, but the mover of each thinks
his own the best. From the number, it would seem there was no difficulty
in finding remedies for the injuries we have received.
Again: we must adopt this resolution, or we shall be degraded. This is
no new phrase to me; I have formerly heard it so often, and on so many
occasions, that I have become a sort of a skeptic on it. We shall not be
degraded by living in peace with all the world. We shall not be degraded
by not following the example of the European nations, by rushing into
war, on every opportunity that may offer. War is nothing but another name
for blood and taxes; we shall not be degraded, being free and happy at
home; but we shall be degraded, if we fail in paying the national debt,
or if we refuse to observe treaties constitutionally made. This will be
the worst kind of degradation, because it will proceed from a want of
morality. In order to induce us to adopt the resolution, we are seriously
told that the revenue is derived from commerce. This I deny, and say that
it is derived from the whole labor of the community. Stop the laborer in
his field, and the revenue is gone. Commerce is useful, it is the means
by which our productions are exchanged for the productions of other
countries.
It has been said that the land tax overthrew one Administration; adopt
this measure, and you may possibly overthrow another. I doubt whether the
gentleman who made the assertion is altogether correct in point of fact;
it may have aided, but other laws were passed, which undoubtedly had more
effect, and were more obnoxious in the part of the country where I live.
I mean the attempt to raise an army without an actual war; an army of
officers, almost without soldiers; the Alien and Sedition laws. It was
also said, we were pledged to protect this carrying trade. This reminds
me of what I once heard said before, which is this: that we were pledged
to pay the salaries of certain judges, after the law was repealed under
which they were appointed. I believe we are as much pledged in one case
as in the other, and not more; I know of nothing binding in this country,
except the constitution and the laws. A majority of both Houses of
Congress may pass a law to give the carrying trade what protection they
please, and that law will be binding. We are also called on to become the
champions of the laws of nations, as if all nations would at once agree
with us what these laws really are, and as if a majority of them adhered
to their principles; when we know that scarcely a nation in Europe pays
any regard to them; and that they will, at different times, entertain
different opinions on the same subject. Have not most of them formerly
declared, that free ships should make free goods, and have not some of
the same nations since given up the principle? Before we undertake this
business, would it not be prudent to endeavor to ascertain the opinions
of other nations, whose interest may be most like our own? I wish no
alliance with any of them; but, if all the nations of Europe should be
willing to yield the principle which we are desirous to maintain, no man
will be mad enough to say we ought to contend for it. There is certainly
a great difference of opinion as to the nature of the measure. Some think
it a war measure; others that it may lead to war, and others again,
consider it entirely pacific. Without attempting now to inquire which
of the three opinions is most correct, it is sufficient for me, that I
believe it will not produce the effect intended, and that its operation
on the United States will be partial. If, however, it should be adopted,
and produce war, that war we must support with all our strength; and if
it produce a good effect, I, for one, will rejoice as much as any man in
this House. A great many appeals have been made to the spirit of 1776;
that spirit was not only the spirit of liberty, but also of magnanimity
and justice; all the measures then taken operated equally on every part
of the Union.
It is said, this is the right time to settle all our disputes with
Great Britain, because she is now hard pushed. If we wish to make a
treaty that may be lasting, we ought not to take any unjust advantage
of her situation; if we do, whenever she shall be free from her present
embarrassments, she will be discontented and restless under it, and never
satisfied until she gets clear of it. The true rule for us, is to take no
advantage, and in all cases to act justly.
I agree in opinion with the gentleman from Pennsylvania, (Mr. SMILIE,)
that war destroys the morals of the people. Hence I was greatly surprised
when he followed this correct sentiment with an assertion that he would
rather have war than loss of national honor. This thing called national
honor has ruined more than half the people in the world, and has almost
banished liberty and happiness from Europe. Destroy the morals of the
people, and we may play over such a game of war as has been played in
France; nothing less than to perpetuate the liberty and happiness of the
nation ought to induce us to go to war.
It is a little remarkable that the United States have, since the adoption
of the present constitution, become the second commercial power in the
world; when, if we believe the public prints, she has lost capital
enough to have ruined the most wealthy nation in Europe. Million after
million is lost, and yet her prosperity is unrivalled, either in ancient
or modern times. I know full well that, according to the opinions of
the writers on the laws of nations, we have just cause of war against
Great Britain. I also know as well, that we have heretofore had as good
a cause of war against both Great Britain and France. We then preferred
peace--the result has been prosperity. What destroyed the prosperity
and liberty of Venice, of Genoa, and of Holland? Wars, and wars, too,
generally undertaken to protect the carrying trade.
TUESDAY, March 11.
_Importation of British Goods._
Mr. MACON.--Much has been said about the spirit of the nation, and
that we are far behind it--meaning, I suppose, those who oppose the
resolution. As to my part, I know not how the spirit of the nation has
been ascertained. There is no manifestation of it on the table. It is,
however, true, that two towns have sent resolutions pledging their lives
and fortunes to support whatever measures Congress may adopt. There are,
also, several memorials from the merchants and insurance companies; but
if gentlemen take these for the manifestation of the national spirit,
they are, I think, mistaken. The national spirit is to be found nowhere
but among those who are to fight your battles. These people may, for
aught I know, be of that number. They may have been before Tripoli, and
they may now be ready to enter into the army or navy. Addresses, we well
know, will not fight battles, nor fill regiments. We have seen, in former
days, the Speaker’s table loaded with addresses from almost every part
of the Union, pledging, also, their lives and fortunes to support any
measures that the then Administration might adopt. What was done? Among
other acts, one was passed to raise twelve regiments of infantry. There
was no difficulty in getting officers--unless, indeed, it was to make
the selection out of the great number who applied--but how was it about
privates? Instead of getting enough for the twelve regiments, scarcely
enough for four could be enlisted. At that time, too, we heard a great
deal about the spirit of the nation, and saw a something of the spirit
then talked of, in a corps called the ---- Blues. Those who then spoke
of the spirit of the nation were deceived. They took the vaporings of
the towns and the noise of the addressers to be really the spirit of the
nation. But, be assured, sir, that whenever the spirit of this nation
shall move, every individual, in every department of the government, will
move too.
The ocean must be considered a common and undivided property, to which
each nation has a right; hence the difficulty of affording the same
security and protection there as on land, where each knows the spot where
his dominion ends and his neighbor’s begins. It is vain, therefore, the
real situation of the United States being considered, to expect from her
that perfect protection on the ocean which she can afford within her
territorial limits. I believe this cannot be done, even to that part of
the ocean from whence we get our exports. Other nations also frequent the
same place, for the same purpose. This, like the rest, is joint property.
Not so with our land, no nation pretends to claim a right to cultivate
that.
The gentleman from Vermont (Mr. ELLIOT) has told us, that by adopting
the resolution we shall encourage other European nations to manufacture
for us. It is, I conceive, quite enough for the agricultural part of
the community to pay their money to encourage the manufactures of this
country. It is as much as I am willing to do. But what certainty have we,
if we adopt the resolution, and give the proposed encouragement, that any
of them will leave their present occupation, be that what it may, to take
our advice? Each one of them may think that their interest is as well
understood at home as we can possibly understand it.
The gentleman from Massachusetts (Mr. BIDWELL) stated the case of our
prisoners at Tripoli, as a case in point. He is, I think, mistaken.
We were at open war with that power, when the frigate Philadelphia
unfortunately struck on the rocks in the harbor of Tripoli. The result
is known. The enemy got possession of the vessel, and the crew were made
prisoners of war. There then existed a state of actual war between the
United States and the Tripolitans. In the present case we have just cause
of complaints against Britain, and are endeavoring to have them settled
by negotiation. I will state a case which seems to me to compare better
with the situation of our unfortunate countrymen who may be now impressed
on board the British ships of war. It is the case of Captain O’Brian and
his crew, who were captured by the Algerines, and remained with them so
long, that I believe the captain, in the latter part of the time, dated
all his letters to his friends by the year of his captivity. I have
understood they suffered as much as any people could bear. We had then, I
believe, no addresses, no resolutions, nor memorials from the merchants
and insurance companies. But this case may not be thought to apply to
that part of our complaints which relate to the capture of our vessels,
carrying coffee and sugar to France and Spain, by the British armed
ships. I will state one which I think has some; it is the case of Scott,
of South Carolina, which has been decided in this House. He claimed pay
for property taken by the Indians at a time when no open and declared
war existed. He got nothing from the national Government. The United
States in a treaty gave the property up to the Indians. I believe, at the
time it was taken, some hostilities had been committed. Permit me here
to observe, that no agent was appointed by the Government to endeavor
to recover this property, and that I well recollect, when the claim was
under debate, that it was stated by a member of the House that one of
the Indian agents had got the treaty, at his desire, so formed, as to
relinquish a claim for the property.
I have endeavored to confine my observations to the resolution now
under consideration, and to answer some of the arguments urged in its
support; though I confess, that, while examining this, I have also paid
some attention to the others on the table. I wish gentlemen, before they
vote, would seriously consider whether this is the best. I think it is
not. When we reflect on the happiness we enjoy, the prosperity of the
nation, the growth of the villages, towns, and cities, the improving
state of agriculture, the number of turnpike roads, bridges, and canals,
which are undertaken in many parts of the Union, and that one improper
act may alter for a time this happy state, and retard every improvement,
we ought to be cautious before we change the ground on which we stand.
Complaints have been made of delay on this important subject; they are,
in my opinion, without foundation. It required serious deliberation
and no time has been lost. It is always far better to decide rightly
than quickly. It is immaterial to other nations what estimate we form
of our own strength--there are two rules by which they will judge: the
number of men and the state of the treasury. Indeed, it seems of late
to have become a maxim in war, that the longest purse is the longest
sword. It is true that we have a single million in the treasury to spare;
it is equally true that resolutions are before us, which, if adopted,
will require at least that sum to carry them into execution. In this
situation, ought we to take measures which may endanger the revenue
without providing ways and means to meet any deficiency? We talk of war
with an almost empty treasury; no two things can be less connected,
except that they are both bad. I have stated that which appeared to me to
be the best plan to secure our seamen from impressment; but the man who
shall actually produce the plan which shall have the effect, will deserve
the gratitude of the nation.
In this time of difficulty we are all embarked in the same ship; my
ardent prayer is, that whatever shall be done, may promote the interest
and happiness of all.
Mr. G. W. CAMPBELL.--Mr. Chairman, I rise to submit to the committee
some of the reasons that will govern my vote on the measure now under
discussion. In doing this, it is not my intention to go over the various
grounds taken in this debate, or to answer the several arguments that
have been advanced, in support of principles to which I am opposed. My
object will be to lay before the committee such a view of the subject
as I conceive best calculated to ascertain the true ground on which we
stand, and the measures which, in the present crisis of our affairs, it
would be advisable to adopt.
I am not disposed, Mr. Chairman, to pursue measures that will crimson
the American fields with the blood of her citizens, any more than
other gentlemen who have spoken on this subject; nor am I willing that
thousands of innocent persons should suffer distress and ruin, for the
benefit of a few individuals--a few merchants; which, it has been stated,
will be the effect of the measure before you; neither, sir, will I ever
give my vote for any measure that shall appear to me calculated to
sacrifice the agricultural interest of this nation to that of commerce,
or have a tendency to enhance the latter at the expense of the former;
and so far as the resolution before you appears to me likely to produce
this effect, I shall oppose it. The people whom I have the honor to
represent are chiefly agriculturists, and it will always be my wish and
my pride, to support their interests, and to cherish and promote the
agricultural interest of this country in general, so far as it may be
in my power. But I am not, at the same time, prepared to see the nation
suffer, without resistance, every indignity with which Great Britain
may choose to treat her, and submit patiently to every aggression and
outrage her cruisers, under her authority, may choose to commit on our
citizens and our commerce. I conceive it our duty to take such measures
as will prove to the world a determination on our part to resist injuries
and maintain our rights. In regard to the commercial relations of this
country with foreign powers, I deem it proper on this occasion to declare
it as my opinion, which I have always entertained, that it would have
been better for the American people, if Government had never given
protection to commerce, out of sight of our own territory, or beyond the
reach of our cannon from our shores. It would have been well for us, if
the American flag had never floated on the ocean, under the authority of
Government, to waft to this country the luxuries and vices of European
nations that effeminate and corrupt our people, to excite the jealousies
and cupidity of those powers whose existence, in a great degree, depends
on commerce, and to court, as it were, their aggressions, and embroil
us in their unjust and bloody contests. If we had guarded against those
pending evils by leaving commerce to seek her own protection, except
within the limits of our own jurisdiction, we should have had a fair
prospect of continuing to flourish a free, independent, and happy nation,
much longer than I fear will be our destiny to do, if we continue to
become more and more entangled in European politics and intrigues--to
be subject to feel the effects of European convulsions, and national
contests, in consequence of being deeply engaged in commercial relations
with European powers. If we had adopted this policy, foreign nations
would have vied with each other for our commerce and our friendship, and
would convey the surplus productions of our country from our storehouses,
and furnish us in return with those articles and manufactures of their
countries, which our necessities or convenience might require; and we
might then behold the collisions of the great powers on the continent of
Europe, and their jarring interests contending for superiority, without
endangering our peace or our happiness, and with no other inconvenience
than the regret we might feel for the miseries and sufferings of that
portion of the human family, with whom, however, we had no immediate
connections.
But, Mr. Chairman, we have assumed the character of a commercial nation,
abroad as well as at home. Our Government has, in some degree, pledged
the nation to protect commerce, and under this impression our citizens
have embarked largely in trade, and made considerable progress therein.
The enterprising spirit of our merchants has raised this nation to rank,
in regard to commerce, the second in the world, and from this source
also, our revenue is chiefly derived. Under these circumstances, I am
not prepared to say this is the propitious moment to retrace our steps,
and without even giving notice of our intention to do so, abandon our
merchants and their property to the rapacity of a foreign nation. I
conceive, on the contrary, it is our duty to afford them such protection
as the resources of our country, and the prospects we have heretofore
held out, would authorize them to expect.
In examining this subject, the first important inquiry that presents
itself, is, in regard to the grounds of complaint which have occasioned
the resolution before you to be proposed. There are two. First, the
impressment of our seamen; and second, the unjust, and, as we believe,
unauthorized aggressions committed on our commerce by the cruisers of
Great Britain. If you look at the documents on your table, you will
see that our seamen have been impressed by that nation for years past,
without the color of right, and in a manner, which it is not pretended,
on this floor, is authorized by justice, or sanctioned by the laws or
usages of nations. They have been treated in the most inhuman manner,
if information is to be relied upon; compelled to perform the hardest
duty in her ships of war, and forced against their will to fight her
enemies, who were at the same time on terms of friendship with us. They
have been taken from sea to sea, and from place to place--from one
country or island to another; shifted from ship to ship, and often sent
to distant parts of the world, so as to place them beyond the research
of their friends or their country, and put it out of the power of either
to reclaim them, by producing the proofs required of their citizenship
to obtain their liberation. It has been stated that Great Britain has
always been willing to deliver up such impressed seamen as were proved
to be _bona fide_ American citizens. But this is a fallacious pretext on
her part, from which little or no benefit can arise to us. She impresses
our people, without inquiring in regard to their citizenship, or paying
the least regard to their protections. Their friends knew not where to
find them, the Government cannot ascertain where they are, and years
sometimes pass before it is known whither they have been carried. It
has, therefore, in most cases, been found impossible to procure their
release, and restore them to their friends and their country; and there
are at this moment, unjustly detained by that nation, between two and
three thousand of our seamen; who have been impressed without any other
pretext, than that they spoke the English language, or resembled, in
their persons, the inhabitants of the British empire. Our Government has,
in vain, remonstrated, time after time, on this subject to the Court of
St. James. No satisfactory arrangements could be obtained, nor is there
any fair ground to expect a change in the conduct of that Government in
this respect. Complaints have been made and repeated in every quarter
of the Union on this subject. The outrages committed on our citizens
have made an impression on the public mind, that demands on our part the
adoption of some decisive measure to correct the growing evil. It has,
indeed, been said by some gentlemen on this floor, that there exists the
prospect of the fair adjustment of our differences with Great Britain on
this subject. I would ask those gentlemen, upon what information this
opinion is founded? For myself, Mr. Chairman, I know of no just ground to
authorize such expectation. The documents on your table do not justify a
belief, that there is at this time the least prospect of adjustment. They
inform us, there was once such a prospect, but that it has long since
vanished; and so far as we can collect information from those documents,
as well as from other sources, there is not to be found in the conduct
of the British Ministers, the slightest foundation for a belief that
they are disposed to relinquish the ground they have taken, unless it
is rendered necessary by some effective measures on our part. I would
then put it to gentlemen to say, if we are not at this time to take any
step whatever, towards vindicating our violated rights, when will be the
proper time for us to act? Have we not patiently endured those injuries
long enough? And if not, how much longer must we tamely submit to them?
What time can be more favorable than the present to resist them? Will it
be when Great Britain has got into her possession a greater number of
our seamen? When, instead of near three thousand, she will have gotten
six, eight, or ten thousand? Will it then be a more proper time to make
a stand--to call upon her by some efficient measure to do us justice--to
treat us as an independent nation, or to tell her, that we will at least
cease to treat her as a friend? I presume not, sir. I cannot conceive it
proper that we should wait for such an event, before we make a stand in
defence of our rights. On the contrary, it is my opinion, there can be
no time more likely than the present, to render effectual any measures
we may adopt. The present state of the war in Europe, which sufficiently
occupies the great powers in that quarter, if properly considered, and
its probable results, in regard to us, duly weighed, ought, it appears
to me, to convince any man of reflection that this is the most favorable
moment to insist on finally adjusting our differences on this subject
with Great Britain. The right of our seamen to protection, while they
sail under our flag is undeniable. It is a perfect right, as much so
as the right to be protected within our houses, or in our carriages
on the highway. You ought, therefore, never to abandon it, on any
pretence whatever; nay, sir, you cannot abandon it, in justice to your
citizens, unless, indeed, you are willing to surrender your independence
as a nation. The ocean is a highway for all nations, over which no
one power has exclusive jurisdiction. If you resign this right now to
Great Britain, what reason have you to believe she will not push her
demands further, and urge you to resign another, that may be still more
important? It is high time that this business was brought to a final
close, for if your seamen are to be seized wherever they are found on the
ocean, you had better strip your ships of every sail they carry, confine
your citizens within the limits of your own jurisdiction, to fight your
own battles, should it become necessary, rather than see them exposed
against their will, in fighting the battles of a foreign nation.
The second ground of complaint is the aggressions committed on our
commerce, contrary to the law of nations, and in violation of every
principle of justice. Great Britain assumes to herself the right to
interdict to neutral nations a commercial intercourse with the colonies
of her enemies, except under such modifications as she has been pleased
to prescribe. She justifies the capture of your vessels on the ground of
their being engaged in a commerce, during the war, that was not open to
them in time of peace. If this principle be once admitted as correct,
and carried to the full extent of which it is capable, it will be found,
in its consequences, almost wholly to destroy, not only the commerce of
this country as a neutral, but that of every neutral nation in the world.
You are told you must not in time of war exceed your accustomed traffic
in time of peace. What is the consequence? War, in a great degree,
destroys the trade which you were accustomed to enjoy in time of peace,
as a great part of it becomes contraband of war; and this new principle
shuts up all the avenues of commerce that were opened, in consequence
of, or even during the war. What commerce, then, let me ask, will be
left to the neutral? None, sir, that will deserve the name of commerce.
But the reasons advanced in support of this principle, will go still
further to show its destructive consequences. One of the reasons given
why you must not carry on this trade, is, because it is beneficial to the
enemies of Great Britain, as you thereby furnish them with provisions
and other articles of merchandise, which relieve them from the pressure
of the war, and prevent her from deriving all the benefits she otherwise
would do, from her superiority at sea. If there is any solidity in this
reasoning it will go the whole length to prohibit you from carrying the
productions of your own farms to any nation the enemy of Great Britain.
Your provisions, bread stuffs, beef, and pork, are surely as useful
for carrying on war as the produce of the West India islands. She has
hitherto, it is true, applied this reasoning only to the productions of
the colonies, but it will equally apply to those of your own country.
Hence, the injustice and absurdity of the principle must appear evident
to every discerning and unprejudiced mind. But she has already, in
carrying into effect her new principle, gone further than merely to
prohibit neutrals from carrying colonial produce directly to the ports of
her enemies. She has laid the groundwork to prevent you from carrying to
those ports your own productions. Your vessels are seized and condemned
for being engaged in conveying to her enemies colonial produce, which
has been fairly purchased and paid for by your citizens, brought to this
country, and, according to your revenue laws, made a part of the common
stock of the nation. If there is a shade of difference in principle
between this case and that in which the produce of your own farms should
be captured on its way to the same enemy’s ports, it is as flimsy as can
be conceived to exist. When your people have purchased the productions of
other countries, and fairly paid for them; brought them into your own,
and complied with your municipal regulations respecting them, they become
neutralized, and as much a part of the common stock of the nation as if
they had been raised on your own farms; and the same principle that would
inhibit you from carrying these to the ports of a belligerent, would,
by parity of reasoning, prevent you from carrying to the same ports the
productions of your own farms.
But, Mr. Chairman, let us for a moment inquire whence Great Britain
derives the right, according to any known principle of law or justice,
to seize and condemn colonial produce, the property of a neutral, in
consequence of its being destined for the ports of the parent State,
her enemy? Strangers can acquire no rights against each other, in
consequence of the domestic regulations relative to commerce, which
a power independent of them may choose to establish. Suppose France,
by law, in time of peace, should prohibit the importation of colonial
produce to her ports, on the continent, except in her own vessels, Great
Britain could have no right to capture an American vessel engaged in such
trade. France alone could rightfully seize and condemn such vessel for
the infraction of her laws; but no other power could have such right.
Suppose such prohibitions removed by France during a war, and the trade
declared lawful, could Great Britain thereby acquire a right to capture
such vessels for being engaged in a trade now declared lawful, which she
could not do when it was unlawful? Certainly she would not. Such doctrine
would be contrary to the plainest dictates of reason and common sense.
She had no right to capture such vessel while the prohibition continued,
and she could not certainly acquire the right by such prohibition being
removed. The intervention of war cannot alter the case, for the rights
of neutrals, except as to contraband, remain the same in time of war
as they were during peace. I must therefore consider this principle
assumed by Great Britain as a flagrant violation of the law of nations,
contrary to every principle of justice, and such as ought not to be
sanctioned by this or any other independent nation. If you tamely
submit in this instance, she will assuredly push her aggressions still
further; encroach on your rights, step by step, as her convenience and
interest may require, until she has effectually destroyed your commerce,
and monopolized to herself the whole of its profits. That part of our
commerce that becomes immediately subject to the operation of this new
principle, has been stated as very unimportant, and under the name of
the carrying trade, has been ridiculed as not meriting the notice of
Government. A very few remarks however will, I apprehend, show that it is
not so insignificant as has been represented. In our trade with Great
Britain, there is a balance in her favor of nearly twelve millions of
dollars. This balance must be paid out of the proceeds of the exports
of the United States to other countries. Many of those countries that
consume a great portion of our produce, cannot give us specie in return.
Our merchants must, therefore, in all such cases, return the produce and
manufactures of such countries instead of specie; and, as the quantity
of foreign produce and goods thus received exceeds the amount necessary
to supply the demands for consumption in this country, it becomes
important that this surplus should be carried to other markets, where
there is a demand for it, and where specie can be obtained in return.
This has heretofore been done by our merchants, by first importing such
foreign produce into our own country, and then re-exporting the same
for a market; and by means of this trade alone have they been enabled
to discharge the balance against us in our trade with Great Britain.
The annual value of imports into the United States amounts to about
seventy-five millions of dollars; of this, twenty-eight millions are
re-exported to all parts of the world, and of that amount, eighteen
millions go to the dominions of Holland, France, Spain, and Italy--the
greater part of which is subject to capture by the new principle of the
law of nations acted upon by Great Britain. This is the carrying trade,
sir, which gentlemen have considered so unimportant as not to merit the
attention of Government. Instead of estimating this trade at $850,000,
as gentlemen have done, being the net revenue derived therefrom, (and
which is not considered as paid by citizens of the United States,) it may
fairly be estimated at nearly eighteen millions, or about one-fourth of
the whole of your imports, nearly in the proportion of eighteen million
to seventy-five. For if your merchants are not permitted to re-export
the surplus foreign produce to those markets where there is a demand for
it, it will remain on their hands and rot in their storehouses. This
would also sink the price of your own produce, as there could not be a
sufficient demand for it, because your merchants would not receive in
return foreign produce. Your trade must, therefore, be diminished nearly
in the proportion before stated. I ask gentlemen if this trade is cut
off, how your merchants are to get specie to meet the balance in favor of
Great Britain of twelve millions of dollars? If this cannot be done, your
imports must diminish in proportion as the means of remittance fail, and
your revenue must also feel the shock, and suffer in the same proportion
as your importations are lessened. This is a view of the subject which I
presume deserves at least the serious consideration of gentlemen, and I
beg of them to pause before they agree to relinquish, without a struggle,
this portion of our national rights--for, if you submit in this instance
to the interdiction imposed by Great Britain of carrying colonial produce
to the ports of her enemies, she will assuredly advance her pretensions,
as already stated, still further, and insist on the right to prohibit you
from supplying them with your own; and it may fairly be asked, on the
ground she has taken, where is the difference between sending colonial
produce to her enemies and sending your own produce? The quantum of
injury to her, and of benefit to them, will be the same; and she will
have nearly the same right to prohibit in the one case as in the other.
This shows the necessity of taking some decisive step that will convince
Great Britain that we are determined not to submit to these aggressions;
that will tell her, in firm and manly language, thus far you may go, but
not farther. On this subject, also, our Government has remonstrated to
that of Great Britain without effect. No satisfactory arrangements could
be obtained, and there is no greater prospect of an amicable adjustment
of our differences with that nation at this moment than there was a
year ago, nor have I any idea that we shall find ourselves in a better
situation in this respect, one, two, or three years hence, if we tamely
acquiesce, than we now are. There is, therefore, no ground for delay; we
can derive no benefit from it; this is the time we ought to act, the most
propitious that is likely to present itself.
But, it is insisted, this measure will produce war; I consider it
entirely in the nature of a commercial regulation, and such as cannot,
as already stated, give any just cause of war. But, it is asked, will
Great Britain inquire whether it is, or is not, just cause of war? Will
she not consider it so, because it is against her interest? If gentlemen
will have it that Great Britain has abandoned every principle of justice,
it is vain to expect she will, on any occasion, be governed by reason,
or motives of propriety, in her conduct toward us; if she is totally
regardless of common right, and governed by her interests alone, she
waits only a more favorable opportunity to give our commerce a more
deadly blow; and it is, therefore, high time to withdraw ourselves from
all connections with her. But, I am not prepared to go this length; I
cannot believe a great nation, who holds a dignified rank among the
powers of the earth, would expose herself to the indignation and derision
of the world, by abandoning all respect for justice and public right. I
must believe she still retains some regard for her national honor; and,
if not for her honor, she does for her interest: all that she could say,
with any color of justice, would be, that she has the right to adopt
other regulations on her part to counteract yours. Let us inquire into
the effect of such regulations. She may say, your produce shall not go
to her colonies, her islands, or any of her dominions. If she takes
this measure, she will prepare the most effectual scourge for her own
subjects. She will reduce the inhabitants of those islands not only to
a state of starvation, but force them at length, in all probability,
into insurrection. We have already witnessed the complaints of those
people to the mother country. We have seen the picture they have drawn of
their sufferings and distress, and their declarations that they cannot
exist without the produce of the United States. How, then, shall Britain
retaliate? She cannot do it effectually without injuring herself more
than she will you. Hence, I am clearly of opinion, the adoption of proper
measures on our part--of measures similar to that before you--would be
likely to produce the desired effect in the conduct of Great Britain
toward us.
It has, Mr. Chairman, been observed by a gentleman from New York, (Mr.
MASTERS,) that national animosity produced the resolution before you.
I regret that such an idea should be expressed on this floor. I know
of no such animosity, but I believe, on the contrary, if a national
partiality exists in this country, it is in favor of Great Britain; not
that I believe such partiality criminal; but Great Britain being the
parent country, speaking the same language with ourselves, and so many
of her subjects becoming citizens of this country, there is naturally
felt a degree of attachment towards the people of that nation. If these
feelings do not go too far, they are laudable; but in regard to a
national animosity to Great Britain, I do not believe it exists in this
country, at least to any considerable extent. If gentlemen mean that this
animosity exists against tyranny, I hope it will eternally exist, so long
as its cause exists.
But, Mr. Chairman, I hope we shall not cherish animosity against France,
any more than against Great Britain. Nor do I wish us to cherish
partiality for either. There was, I believe, sir, a time when the people
of this country felt a generous impulse in favor of the French nation.
The flame of liberty that issued from the bosom of America, during the
Revolution, had kindled up anew in France, and promised for awhile to
illuminate the whole world. The American people rejoiced at the prospect,
and felt a generous sentiment of enthusiasm towards those who appeared
to be advocating the cause of liberty and the freedom of man. But I am
not prepared to say, that their flame has continued to burn, or that the
expectations it created have been realized; but I may, I presume, say,
there is no ground to believe that this nation entertains a criminal
animosity against or partiality for either Great Britain or France. The
same gentleman has observed, what I admit is too true, that Great Britain
governs the commerce of the world. This, however, is the strongest
reason that could be advanced, against a tame submission to every act of
aggression which that Government may choose to commit on your commerce,
unless, indeed, you are willing to acknowledge a national pusillanimity,
and an inability to resist injury. If we are unable to oppose Great
Britain on the ocean, and she will persist in her unjust violation of our
rights, let us withdraw from all connections with her--confine ourselves
within the limits of our territory, and live independent of her luxuries
and her commerce, on the productions and manufactures of our own country.
To conclude my remarks on this subject, I will briefly repeat, that I am
decidedly of opinion, the conduct of Great Britain is such, in impressing
our seamen, and capturing merchant vessels, on the ground of their being
engaged in a trade with her enemies, not open to them in time of peace,
is manifestly unjust and unauthorized by the laws of nations. I conceive
we have an undoubted right, without giving just cause of war, to regulate
our own commerce, and to say from what nations we will, or will not,
import articles of consumption; and what description, and under what
circumstances. I also believe it our duty at this time to adopt some
decisive measure on the subject, that will evince to Great Britain our
determination to resist aggression, and to maintain our rights. I would,
sir, prefer a measure in which we could, and would persevere, unless it
should be found our interest to change it--a measure that would be least
likely to paralyze our revenue or affect the agricultural interest. With
this view, I would prefer, in the first instance, imposing additional or
discriminating duties on certain specified articles, imported from Great
Britain; such as would give the preference to other European markets.
Or, if more agreeable to the majority of this House, I would concur in
interdicting the importation of such articles. And if this should not
prove effectual, I would take still stronger ground. I would prohibit
the importation of all merchandise, the growth or manufacture of the
British dominions. And, should it become necessary, I would cut off all
intercourse with that nation; which would effectually starve her West
India islands, and compel her to come to just terms, or abandon her
colonies to distress and ruin. These measures I am willing to take, and
support in succession, as the occasion may require; and in doing so I
shall act under the conscientious and perfect conviction that they are
for the good of the nation; that they are necessary to vindicate the
injured rights and insulted honor of my country; and that country will, I
am confident, in this, justify my conduct.
Mr. JACKSON.--My conviction of the importance of this subject will plead
my apology for the trespass I shall make on the time of the committee. I
purpose to take a rapid review of the points in discussion between this
country and Great Britain, and to touch lightly upon the arguments of
gentlemen, who have contended that it is better to surrender them than to
assume an attitude of resistance, or to adopt measures perfectly pacific
for the purpose of producing a relaxation of the arbitrary systematic
attacks upon our neutral rights; for, with one or two exceptions, the
objections adduced go to sanction the opinion that the commerce in
question ought to be abandoned; and that this Government ought not to
do any thing to protect it. The measure presented to the consideration
of this committee is calculated to produce a redress of the grievances
complained of with so much justice. First, the capture of our vessels
sailing on the high seas, in strict observance and obedience to the law
of nations; and, secondly, the impressment of our seamen, _bona fide_
citizens, protected by the flag of the nation. While we are discussing
the proposition of resorting to a remedy to redress these evils, we
are met by gentlemen who deny that it is right to do any thing. First,
because the Executive has not recommended any particular measure; and,
secondly, because the trade under consideration is fraudulent, and the
citizens impressed are the subjects of Great Britain.
With regard to the first allegation, that the Executive has not
recommended any specific measure, was it not objected under a former
Administration that the Executive interfered improperly in legislative
measures? Congress possesses the constitutional power of declaring war,
and should the Executive recommend a declaration of war to us, I presume
we should hear much of the Executive attempting an undue and indecent
influence over our legislative powers; for, judging by the past, I
have no doubt that whenever such a recommendation shall be made by the
Executive, it will be opposed by the same persons who now call for his
recommendation, and express dissatisfaction at his withholding it.
But it is asserted this trade is fraudulent, and it is dishonorable to
protect it. So much has been said and written on this subject, that it is
altogether useless to combat the arguments urged on this floor; for it is
not because a celebrated pamphlet, without an author, has been written
on the subject on this side of the water, vindicating the fairness and
legality of the trade, or as gentlemen will have it, surrendering the
question at the threshold, or because another equally celebrated has
been written on the other, declaring it “War in Disguise,” that we will
consent to be concluded on the question, as they are all free game, and
ought to pass for nothing unless their arguments carry conviction to
the mind. The question resolves itself into the consideration whether
this trade is fraudulent or not. Can we exchange our productions with
the colonies of the belligerent nations--bring here theirs, and carry
any surplus beyond our wants to other nations? I conceive that we can;
common sense sanctions the opinion. Gentlemen, however, say we cannot.
That the property is not changed, but still belongs to the original
owner of it, and that our neutral flag fraudulently covers the enemy’s
property. But gentlemen deal in a mere coinage of the fancy when they
say so. I demand their proofs; they will not accept our opinions; and I
with equal propriety reject theirs. How will they show that this is not
our property? It is said that a want of capital is a proof of it; but,
on investigation, it will be found, that the American capital is fully
adequate to the carrying on this trade. Do not we find our merchants
engaged in the trade to the East Indies, which requires a capital of
three and four hundred thousand dollars, and if the trade to the West
India islands be equally profitable, is it not to be presumed that
they will likewise engage in it? If this property does not pass by the
transfer, as we contend it does, it may be maintained that a horse sold
in the open market will be subject to an execution subsequently issued
against its previous owner; nay, even that the executor of such owner
may sue for and recover it. But this argument shakes every principle
involved in commerce to its foundation; its origin is traffic, which
induces one man to exchange the surplus beyond what is necessary to him,
for that which is necessary, and was the surplus of another; and if the
property is not changed by this traffic, nothing is safe, every thing is
afloat, and no man knows to whom any property belongs which may happen
to be in his possession. Such a doctrine must destroy all commerce at a
single blow. But, say gentlemen, Great Britain indulges us in pursuing
the honest carrying trade. I disclaim the position. How can she be said
to indulge us with a right sanctioned by the law of nations; a right
inherent in every independent nation? I contend that the trade to which
I have just alluded, is as just and honest as any other trade of this
country afloat on the ocean.
Great Britain not only imposes on our trade the restriction which
interdicts our carrying the products of the colonies of her enemies to
the mother country, after incorporating them with our own stock, but she
disallows all trade with her enemies in time of war not permitted in time
of peace. The gentleman from Virginia argues this is correct. He says
Great Britain has a preponderance on the ocean, and inquires whether we
have a right to check it by supplying her enemy with any thing necessary
to relieve his wants. This is going farther than “War in Disguise;” than
the time-serving Sir William Scott, who sometimes recollects that he is
called on to expound the law of nations as a judge, and at others only to
register the orders of the King and Council; or any other man in England.
Does not this strike at the root of the whole trade of our country? There
is no nation at war that is not more or less supported by our products;
they drive from us the means of subsistence, and the carriage of them,
it seems, is to be prohibited because Great Britain has a preponderance
on the ocean, and can starve out her enemies if we are not permitted to
carry to them. Great Britain says you shall not carry on a trade in time
of war not permitted in time of peace. She seizes our vessels; inverts
the natural principle of evidence; throws the _onus probandi_ of showing
that this trade then prosecuted was carried on in time of peace, on the
owner of the property, and thus our whole trade afloat is exposed to
hazard and vexatious interruptions. But, in defiance of this rule set
up by herself, Great Britain opens in war her own islands, whose trade
is shut up in time of peace. Test then her principle by her practice.
It will not be contended that she connives at a fraudulent trade, or
justifies it as lawful with herself, when she declares the same trade
relatively to her enemies illicit and subject to condemnation. If then
she is not governed by narrow and unjust views, she cannot contend that
that is right when it respects herself, which is wrong in relation to
another. She has yielded that question by opening her ports in war which
were shut in peace, and has made, even if there existed a previous
doubt, this trade lawful. But, not confined to going this length, she
carries on that trade herself which she denies to us; thus adding
another to the numerous outrages committed upon us. If we acquiesce in
this doctrine, advocated by Great Britain, sanctioned by her admiralty
courts, and enforced by her cruisers, I ask if we shall not violate that
honest neutrality which compels us to treat all nations alike? The great
principle of a neutral nation, as defined by the law of nations, is, to
treat the belligerents with equal impartiality, and not to favor one at
the expense of another. By acquiescing in the doctrine that renders this
part of our trade liable to capture, we make ourselves a party on the
side of one of the nations engaged in war.
This colonial trade is not only lawful, but it is beneficial to the
merchant and also the farmer. Gentlemen have attempted to draw a
distinction between the mercantile and the farming interests. I shall by
and by expose the fallacy of their reasoning; but, at this time, I will
confine my remarks to proving that this trade is not only beneficial
to the merchant but likewise to the farmer. The colonies from which
this trade is derived are fed exclusively from this country--to them we
carry our provisions and receive in return their productions. It is not
our interest to receive money, if they had it, because we should lose
the profit on the return cargo. If we were not at liberty to purchase
beyond the consumption of our country, the extent of our exports would
be diminished in the same ratio, for not having money to pay for our
provisions they could not purchase them. The consequence would be that
the trade would fall into retail hands, and the loss would reverberate
on the farmer, the demand for his productions would be diminished, and
they would rot in our warehouses. This shows that the farmer is as deeply
interested in the trade as the merchant.
WEDNESDAY, March 12.
_Importations from Great Britain._
Mr. JACKSON.--I admitted, in its fullest latitude, the aversion of the
American people to go to war for light and transient causes. They will
sedulously foster peace; they will bear and forbear much; viewing war as
the scourge of the human race, every honorable exertion will be made by
them to avert it; but there is a point of degradation and insult beyond
endurance which no nation can advance to without feeling the vengeance
of United America. We have tested this truth by experience. Look to the
Revolution, sir, when the noble spirit of the times braved the terrors of
treason, misery, and death, rather than tamely submit to the accumulated
wrongs that were heaped upon us. I have too much respect for my country
to believe that any attempt to rob us of a single right which we then
secured by one of the noblest struggles recorded in the annals of the
world, would be tamely surrendered. But it is said the spirit of the
nation has been roused by the impositions of the newspapers, influenced
by the rapacity of the merchants. No, sir; it is by seeing its rights and
the rights of its citizens trampled on--prostrated by a lawless banditti
on the ocean, respecting no law but their own interest--acknowledging no
rights between them and the tyranny of the seas. Is the capture of our
seamen, and vessels, and cargoes on the ocean, an imposition? No, sir;
it is a fatal reality, witnessed by the miseries and bankruptcies of
thousands; and when an honest burst of indignation is re-echoed from the
remotest corners of the Union, we are gravely told that we must make a
distinction between commerce and agriculture, which it is alleged exists
in fact, and cannot be lost sight of. Let us examine this doctrine.
The merchant purchases the produce of the farmer, his beef, and pork,
and every surplus which he has, and traverses every sea in search of a
market for it; the price abroad produces competition at home; the profits
to the merchant being always nearly the same, and by this competition
the farmer receives a premium proportionate to the demand abroad; but
take away this rivalship at home by abandoning your merchants to the
depredations of every freebooter--for, if you once pronounce that they
are to be abandoned, every sea and shore will be infested by them--and
you compel him to quit the ocean, to employ his capital on land, and
our farmers will be obliged to take whatever price foreigners coming
into our ports may choose to give, and to purchase the productions of
other countries from them at whatever price they may choose to ask.
The interests of agriculture and commerce are, therefore, intimately
connected: but another expedient is resorted to. It is said a distinction
is to be kept up between the Northern and Southern interests, and this
measure will operate on the South alone. Sir, we ought to know nothing of
local interests or geographical divisions, when the rights of an American
citizen are invaded; we ought only to know it and feel it as Americans.
Did the North use other language when the navigation of the Mississippi
was destroyed by withholding the right of deposit at New Orleans?
No, sir, with honorable feelings, their only solicitude was how they
should most effectually restore and preserve it. Let us then act with
sentiments of the same noble liberality when the pressure of wrongs is
most immediately felt by them, but which must and will operate upon us
also, for no measure can affect the rights of this nation that will not
sensibly injure every part of the Union. If our commerce is disturbed, if
our rights on the sea are cut off one by one, and such is the tendency
of the present measures of Britain, what will become of our cotton and
tobacco? Will they not rot on our hands, or be sold at the price of those
who may be pleased to come and purchase them? If commerce languish,
agriculture will languish likewise, for one is the handmaid of the other.
But, say gentlemen, the value of the trade interrupted by the piratical
conduct of Britain, is not worth contending for, is not worth the risk of
the present measure, or the hazard of war. I hope, however, we shall not
estimate national wrongs by pounds, shillings, and pence. I hope that,
when our rights are invaded, we will all be united, not in calculating
the cost, but in adopting measures to insure redress. But gentlemen say
these aggressions will only last during the war. Sir, the war in Europe,
for the last fifteen years, has been almost unintermitted. Were you to
hold this language to an individual, and say to him, you are denied free
ingress or egress to or from your own mansion, and console him by adding,
you can bear with your wrongs, they will last only during your lifetime;
he would spurn you from him with indignation. Look at the state of the
European world, at its situation for twenty years past, and say what
chance have you of peace? I hope our rights will not be thus permitted to
be trampled on with impunity, under such a pretext. I hope to see some
systematic measures adopted to meet Great Britain, who appears to have
formed a deliberate plan to inflict all the injury in her power on this
people, whom she looks upon as her most dangerous rival. This step, which
she has taken, is a link in the great chain of vassalage, a colossal
stride towards effecting that plan which has for its object the dominion
of the seas. If we yield one right, as well established as the right to
breathe the vital air, it is weak in us to imagine Great Britain will
stop here. This would be as contrary to her genius as the genius of this
Government is to war.
I consider the aggressions which Britain has made upon our trade alone,
a sufficient stimulus to induce us to do something. But when I refer to
the three thousand seamen she holds in miserable bondage, I consider
the destruction of this trade as but a drop in the ocean compared with
them. But, on this subject, horrid as it is, I find some gentlemen are
the apologists of Britain! One gentleman observes that, inasmuch as
her own subjects are in our employ, she has a right to take from us an
equal number. But there is no analogy between the cases. The act of her
subjects in entering into our service is voluntary, while our citizens
are kept in her service by violence. Some of our own citizens reside in
Britain, and yet we never dreamed of complaining, because she has not
banished them from her bosom. No man in his senses can say that Britain
is justified in keeping our citizens in slavery, on the ground that we
employ her subjects in our service.
If a man has a protection, she says it is fraudulent and tears it to
pieces; and if he has not a protection, she declares that conclusive
proof that he is not an American citizen. It is very much to be regretted
that the law requiring those protections ever passed; and that we had not
asserted the right to protect every man sailing under our flag, except
the enemies of a belligerent nation. Three thousand of our citizens
now groan under this abject slavery! This number have presented their
claims to your Government. Besides which, many more are carried from
sea to sea, and from one country to another, without being ever able
to make their cases known to you. In vain do they endeavor to forward
their complaints--an inexorable tyranny denies them the indulgence. It
is fair then to infer that the whole number is twice that I have stated,
and it really appears to me as if our sensibility were lost in the
magnitude of the injury. If there were but a single case of this species
of oppression presented to us, it would be more affecting and effective.
Draw the picture of a single victim, the only son of aged parents,
their staff, the prop of their age, their pride and only support; he
toils and labors to obtain a venture, with the pleasing prospect of
quadrupling his little capital--they follow him, when ready to leave
them, with tears and blessings to the water side, where he embarks; and
in a few hours the lessening sail is lost to their view on the bosom
of the wide-expanded ocean. They return to their cottage and implore
a beneficent God to protect their darling; they count the days of his
absence, and when, according to the usual course of events, the period
of his return is drawing to a close, each hour awakens new fears and
new solicitude. By and by the vessel anchors in its port--they fly to
embrace him--but, alas! he is not there--he was, off the harbor’s mouth,
robbed of his all, impressed by the British, and carried into worse than
Algerine slavery--for with those he would only be compelled to work for
his master, whilst these make him work, and fight, under a lash more
cruel than the barbarian bastinado, and a despotism more unrelenting
than the slave driver’s exercise. Their golden dreams are vanished with
the recital. The soul shrinks back upon itself; they cast a long and
wishful look upon the ocean, and with tottering steps reach their once
peaceful, happy home--but no peace, nor happiness, welcomes their return.
Hope lingers for awhile, and cheers their drooping spirits--it directs
their appeal to the Government, which the old man fought and bled in
the field to establish, upon the basis of universal justice, and whose
principles he impressed on the mind of his child. Year after year it is
deaf to their cries; it sits down and calculates the cost of asserting
its rights, with the nicety of a ledger-keeper, and decides in favor of
a pusillanimous acquiescence, because the balance of dollars and cents
is struck in its favor. Poverty approaches with rapid strides--their last
dollar is laid out to procure the means of subsistence; too proud to
beg, and too infirm to labor, they know not how to avert their fate; the
little plans they have formed without the means of execution, fly like
meteors before them--nature is making a mighty struggle with adversity,
when it is announced that their boy fell beneath the thousand lashes
which were inflicted on him for attempting his escape; and Death, kindly
interposing his friendly arm, grants a respite from their miseries!
Does not such a case demand our attention? It is not at all comparable
to that of many others. Add to the scene which I have feebly portrayed,
the distraction of a tender wife, manacled and confined in the cold
damp cells of a lunatic hospital--her children bound out by the parish,
and all their prospects of life nipped in the bud, occasioned by the
impressment of the husband and the father--and then tell me do we violate
the principles of the constitution, which declares that it is made to
provide for the common defence and general welfare, by vindicating those
measures which are well calculated to procure redress? This were indeed
to play such fantastic tricks before high heaven, as make even angels
weep! Shall we, in the Tripoline war, to rescue from bondage three
hundred Americans, perform, through the agency of some of our citizens,
acts of perseverance, address, and heroism, unsurpassed in the annals of
ancient or modern times, at the sacrifice of the lives of many brave men,
who, with some of those that survived the conflict, will be enrolled by
a grateful country upon the list of the favorite sons of the American
nation--when as many thousands are groaning under the cruel oppression of
Great Britain, and crying to us for succor, without exciting or producing
one manly exertion!
THURSDAY, March 13.
_Importations from Great Britain._
The House again resolved itself into Committee of the Whole on the state
of the Union--Mr. GREGG’s resolution still under consideration.
Mr. LEIB.--From the course which has been pursued for several days, I am
induced to move that the Committee of the Whole on the state of the Union
be discharged from the further consideration of this resolution, and that
of the gentleman from New Jersey. Without entering into the merits of the
resolution, I will confine myself to stating the reasons on which I make
this motion. I did expect, when this subject first came under discussion,
to have heard something respecting its merits; that a comparison would
have been drawn between the advantages and disadvantages likely to
ensue to the United States from its adoption, instead of which I found
my colleague sailing round the coast without examining its tendency or
bearing. He told us it was pacific, and, in the same breath, said it
struck a dagger into the vitals of Great Britain. If, Mr. Speaker, I were
to strike a dagger at you, would you not consider it a hostile act?
And yet this measure is said to be pacific, and it is represented as
having no tendency to war. When this measure was first proposed, I was in
favor of it; I was impelled by my feelings against Great Britain, whose
injuries I sensibly felt. But I have since listened to the arguments
adduced in its favor by my colleagues. What are they? Did they speak of
its profits and loss; did they show that it would be advantageous to this
country? Instead of this they talked of national honor. But, on this
subject, I agree with the poet:
“Act well your part, there all the honor lies.”
I am not disposed to be a duellist for national honor. I am disposed
to view this as a question of profit and loss; and if the loss will be
greater than the gain, to reject it; and it is because I think that the
United States will incur more loss than profit by it, that I wish to get
rid of it. I believe it will have a warlike aspect, and therefore I am
against it. I have no idea of fighting all the world. I hope, from the
course which this discussion has taken, and from the conviction which it
has produced of the inability of the United States to carry this measure
into effect, that we will enter on the discussion of some other measure
more likely to be effectual. I am willing to get rid of this resolution
in the easiest way, and I therefore move you to discharge the committee
from its further consideration.
The yeas and nays were then taken on discharging the Committee of the
Whole from the further consideration of Mr. GREGG’s resolution, and
were--yeas 24, nays 101.
The question was then taken on discharging the committee from Mr. SLOAN’s
resolution, by yeas and nays--yeas 26, nays 98.
The House then resolved itself into a Committee of the Whole on the state
of the Union.
The Chairman put the question on considering Mr. GREGG’s resolution, on
which the committee divided--yeas 47, nays 70.
Mr. J. CLAY moved to consider the resolution offered by himself, and that
of his friend from Maryland, (Mr. NICHOLSON.)
FRIDAY, March 14.
_Importations from Great Britain._
Mr. MUMFORD said: Mr. Chairman, it is with great diffidence I rise to
speak on this question. I am a merchant, unaccustomed to speak in a
public body. But, sir, when I see the dearest interests of my country
unjustly attacked by a foreign nation, I must beg the indulgence of this
committee while I express my sentiments on the serious aspect of our
foreign relations. Sir, I do not wish to extenuate the conduct of any
nation. I have no predilection for one foreign nation more than another.
I shall endeavor to speak the language of an independent American.
Sir, I had indulged the hope that the ninth Congress of the United States
had assembled to deliberate on the momentous affairs of their country
as Americans; but, sir, it gives me pain, and I regret extremely, to see
gentlemen so far forget the interest of their own country in defending
the pretended rights of others. That there should be a difference
of opinion respecting our own regulations, was to be expected, but
when your lawful commerce is attacked by what the honorable gentleman
from Virginia so emphatically terms “the Leviathan of the Ocean,” and
attacked, too, contrary to their own acknowledged principles, as laid
down in the correspondence between your late worthy Minister, Mr. King,
and the British Minister, Lord Hawkesbury, I beg leave to call on the
Clerk to read that part of the Boston memorial which relates to that
correspondence. [The Clerk read the article.]
I shall now commence my observations on our unfortunate fellow-citizens
in British bondage; and in answer to the honorable gentleman from
Maryland, whom I very much respect, I do frankly acknowledge that amongst
all the petitions presented to you by the merchants of the United
States, there is not one word about our impressed seamen, Salem and
another port excepted. But, sir, I beg leave to inform this committee,
and that honorable gentleman, that before we enter our vessels at the
custom-house, we are called upon to witness the recording of this tale
of human woe before a notary public, stating all the seamen impressed
during the voyage. This is immediately transmitted to the Secretary of
State, for the correctness of which I refer you to the documents from
that department now on your table. Sir, is it decorous, is it candid, is
it liberal, is it respectful to the committee to impute such unworthy
motives to the merchants as we have heard expressed on this floor?
They are men, sir; and I believe candor will allow them their share of
sensibility, and that they sympathize for suffering humanity as much as
a planter, a farmer, a lawyer, or any class of the community. Sir, I
feel as much as any man for the sufferings of this meritorious class of
citizens, having been an eye-witness to the barbarous treatment inflicted
by the officers of the British Government on one of them. He was lashed
to a scaffold on the gunwale of a boat, and whipped from ship to ship,
until he had received five hundred lashes. What was the consequence? He
expired the next morning. What was his crime? He had been impressed into
their cruel bondage, and had endeavored to regain his liberty! We are
asked, what is the remedy for this outrage? There is but one, sir. Demand
satisfaction for the past, and in future make your flag protect your
citizens, at least on the high seas, the common high road of all nations.
Your merchants can insure their property against this “Leviathan of the
Ocean;” but there is no alternative for the poor sailor, he is inevitably
doomed to cruel slavery.
I now come to speak of foreign nations. We are told that the American
merchants cover Spanish property. This may be the case. I believe it;
but it is to a very limited amount. The Spanish merchants have little
capital at present to dispose of. Their Government owes them considerable
sums of money, and the paper currency of that Government is at such a
discount (I believe from 40 to 50 per cent.) that they are not able to
extend their commerce, if they were ever so much disposed to do so.
Respecting the French merchants, a great proportion of them in France
are bankrupts, in consequence of heavy taxes, contributions, forced
loans, and all the impositions of imperial ingenuity. That country
depends not on commerce for her revenue; she collects one hundred and
twenty millions of dollars per annum, of which twelve millions only are
levied upon commerce, being but ten per cent, on the whole revenue. Their
merchants have it not in their power to extend their business for want of
a capital, which is a fact that will be acknowledged by all commercial
men. They are by no means the favorites of the Emperor; he grants them no
indulgences, of which the late transactions at the national bank are a
sufficient evidence.
Respecting Holland, every person conversant in business knows the
cautious calculation of the Dutch merchants; they trade very little
on their own account in time of war, but are constantly soliciting
the American merchants to make consignments of property to sell on
commission. And yet we are told in that oracle, the celebrated pamphlet,
“War in Disguise,” that France, Spain, and Holland carry on the war
against Great Britain with property covered by Americans! Will any
rational man believe them?
I now come to Great Britain, sir; not one word has been said about
property covered for her. She is immaculate; she is innocent; she can
do no wrong. I have good authority for this last expression. The King
says so, and others repeat it. Sir, immediately upon the coalition being
formed on the continent of Europe, she seized upon your unsuspecting
commerce, and surprised it with new principles and new doctrines in her
Courts of Admiralty, which operated with her ships of war in the same
manner as though they had actually received orders from the Lords of the
Admiralty (how insidious! but they understand _decoy_) to capture and
bring in all American vessels bound to enemies’ ports; and if by chance
any of them escape their fangs, after a mock trial, they are compelled
to pay enormous charges, from five hundred to six hundred guineas, and
sometimes more. This operates as a premium to carry in all your vessels,
knowing beforehand they will have nothing to pay; for, although you gain
your cause, you must pay the costs. This, sir, discourages your cautious
and best merchants, and they are thus compelled to abandon and decline
pursuing a lucrative and lawful traffic.
If there be any property covered for Great Britain, I have every reason
to believe, from facts I will state to the committee, that it appertains
almost exclusively to some British merchants, lately adopted citizens of
the United States, for they take good care to keep all their business
in their own hands. They are the honest merchants who own the honest
vessels we have heard so much about, and they are engaged in exporting
cotton, tobacco, and other produce of our country. Why should they have
the preference? it will be asked. I will not tell you what I do not
know, (as has been said in this committee,) but I will tell you what I
do know. Sir, the real American merchants cannot enter into competition
with them. They have their particular friends in England, who are
interested, and will of course give them the preference. By a variety of
ways they obtain all the freights, to the exclusion of your vessels. Sir,
we are often compelled to take in ballast alongside of those very ships
who have full freights engaged. Thus, sir, the real American merchant
is the dupe of these honest adopted British citizens. These are your
slippery-eel merchants, so justly denominated by the honorable gentleman
from Virginia, whose acme of mind I much admire. They were indeed, sir,
so slippery in some of your districts, that it was found necessary to
pass a law excluding all of them who resided in foreign countries from
owning any ship or vessel belonging to the United States; for a number
of them, after having made fortunes out of your neutrality, had slipped
off to Great Britain to spend the money and the remainder of their days.
And in order that we might not compromit our neutrality in this deceptive
business, our National Legislature has been careful to pass a law in the
first session of the eighth Congress, dated 27th March, 1804, to correct
the abuse, which has in some measure put a check to it; and yet we are
emphatically told that it is only coffee, sugar, and East India goods
that are guilty of the sin of interfering with British merchants, those
monopolizers of the commerce of the whole world.
I mention these facts, sir, to vindicate the character of the real
American merchants; it will stand the test with that of any other nation
in the world. Sir, look at your revenue system, examine all the records
of your district courts, see how very few fines and forfeitures they
have incurred, and then compare them with any class of citizens you
please, and you will, I am confident, Mr. Chairman, exculpate them from
such disingenuous reflections as have been animadverted upon in this
committee. Sir, they make it a point of honor to discourage smuggling,
knowing the whole revenue of their country to depend upon that fidelity
which they have never ceased to inculcate. I cannot but persuade myself
that, on mature reflection, gentlemen will not withhold from that class
of the community the protection guaranteed to them by the constitution of
their country. It is a fact well known to this committee that the Federal
Constitution, under which we now hold our seats in this House, grew out
of the great inconveniences we then experienced in our commercial affairs
with foreign nations. Surely they are not outlawed. I trust not, sir. I
hope better treatment from the hands of my country.
I now come to the true history and the cause of the aggressions of Great
Britain. It is very difficult to trace her in all her ramifications of
fraud on your neutrality and of injustice on your commerce. Sir, when
the present continental coalition was concluded, the “lords of the
ocean,” with that colossus the East India Company, the merchants trading
from London to the continent of Europe, the West India merchants, and
some of our honest adopted citizens from Great Britain, all agreed with
common consent to be in the fashion; and they formed a coalition against
your commerce, and ordered a book to be written, in which they took a
conspicuous part, called “War in Disguise.” This was truly on their part
_war in disguise_, and the first act of hostility they commenced upon
your unsuspecting commerce; and I hope they may ultimately meet the fate
of all other coalitions, at least as far as respects our country. They
had ordered, as all coalitions do, a large supply of ammunition; one
hundred thousand copies of this instrument of death to your commerce were
distributed, at sixpence each, to all parts of the British dominions,
in order that your property might be plundered for the use of the naval
commanders, who could no longer find any other property on the ocean.
This book says, “they must retire on a handsome competency at the close
of the war,” no matter from whom it is taken.
Next comes the East India Company, that colossus of mercantile avarice,
whose monopoly draws into its vortex all the demand for East India
produce in Europe. Your lawful commerce to those markets interfered with
them, and was considered incompatible with this monopoly, and must be
doomed to destruction.
Next come the merchants trading from London to the continent of Europe.
They attend the public auctions, purchase your condemned vessels and
their cargoes, procure a license from their Government, and send the same
cargo on their own account to the very market your own citizens intended
it for.
I now come to some of those honest adopted British merchants; and in
order to elucidate that subject, I will beg leave to read a copy of a
letter from one of the first houses of respectability in London, said to
be in the confidence of the Minister:
“This Government has granted licenses to neutral vessels,
who take in a proportion of their cargoes in Great Britain,
to proceed to the Spanish colonies to the south of the line,
provided the returned cargoes are to be brought to this
country; and I have now several expeditions of this nature
under my direction for the account of houses on the continent,
who prefer subjecting themselves to the conditions Ministers
have imposed for the toleration of that trade, to the risk
of detention and its consequences, even in the event of
restitution.”
This is no fiction, sir, it is a fact. It cuts your commerce like
a two-edged sword, involves your neutrality, and prevents your own
merchants from going to the same market, the profit on which ultimately
centres in Great Britain. There are at this moment British agents in
two of your commercial cities, and I suppose more in other parts of the
United States as well as in Europe, for they swarm on the industry of
all nations. They are acting in concert to carry on this licensed trade
with the Spanish colonies, their enemies jeopardizing your neutrality,
to the manifest injury of the real American merchants. This is a very
valuable branch of commerce, as you may readily suppose from the price
that sagacious calculating nation sets upon it. What is the result of
all this? Why, sir, if it were not for the interference of this very
Government, so much extolled at the expense of your own, we should enjoy
the benefit ourselves. They themselves license vessels to carry on a
commerce, which if pursued by your citizens, without their permission, is
sure to be plundered. Thus, sir, that Government assails your commerce
at home, and condemns it abroad, on the most vexatious and unwarrantable
pretensions.
Sir, I beg leave to call the attention of the committee to an important
fact. Examine your treaty with Spain, your treaty with France, your
treaty with Holland, your treaties with some of the Northern Powers,
what do they say? “Free ships make free goods.” What does Great Britain
say? “You shall give up the goods of my enemies;” and you accede to it.
Is this reciprocal? Is it just? Is it not a humiliating concession? Is
this cause of war? What says that oracle, that celebrated pamphlet, on
this occasion? Not a word, sir; it is as silent as the grave. Who now
has the greatest cause of complaint, Great Britain or her enemies? Her
motto is “Universal domination over the seas”--the common highway of
all nations--and, unless you assert your rights, you will be swept into
the general vortex. We are told that this is a war measure. If it be
true, and commercial regulations are of that nature, we are at war with
Great Britain at this very moment, for she imposes four per cent, on her
exports to our country. You cannot impose any on your exports to that
country; it is unconstitutional.
Mr. CHANDLER.--Mr. Chairman, unaccustomed as I am to public speaking, it
is with extreme diffidence that I rise to make a few observations on the
measures now under consideration; but the subject is so important, that I
am unwilling to give a silent vote.
It appears to be acknowledged by all the gentlemen who have spoken before
me, that we have just cause of complaint against Great Britain; that she
has impressed our seamen and compelled them to serve on board her ships
of war, to the number of several thousand; that she holds them in the
most degrading servitude, and compels them to fight her battles against a
nation with whom we are at peace, and that she has seized and condemned,
contrary to the laws of nations, and usage, our ships and property to a
very large amount. This fact, Mr. Chairman, is so evident and notorious,
that it would be trifling with the time of this committee, were I to
attempt to introduce new evidence to prove it.
This point being conceded, it then remains to be determined whether we
will tamely submit to these wanton aggressions upon our rights as an
independent and a neutral nation, or have recourse to measures of some
kind calculated to obtain redress for the past and security for the
future. The first, Mr. Chairman, ought to be put out of the question.
To submit, without opposition to so wanton and so flagrant violation of
our rights, would render us unworthy the name of Americans. For what
did we contend with this same Great Britain in 1775 and the succeeding
years? When we were few in numbers, and at first without arms, without
ammunition, without money, or other established resources, and without
allies? Sir, a Warren, a McClary, a Montgomery, a Mercer, and a host
of heroes, fought, and bled, and died--for what? For the rights, the
liberties, the freedom, and independence of our country. And shall we,
Mr. Chairman, without one effort, surrender those dear-bought rights and
privileges, the price of which was the best blood of our countrymen? No,
sir, we shall not, we will not do it; our faces would be covered with
shame, and disgrace as well as injury descend to our children. But, sir,
this committee will not consent to a surrender of those rights, which
they are constituted to guard and protect. They will, I presume, at least
a great majority of them, be disposed to take measures sufficiently
strong to compel that haughty nation to do us justice.
I believe, Mr. Chairman, the only difference in opinion with most of
us is, what measures will be most likely to have the desired effect,
with the least injury to ourselves. For my own part I was in favor of
the resolution laid on the table by the gentleman from Pennsylvania. I
allude to the one which has been several days under discussion. I was in
favor of it, because I believe it would be the most effectual; and no
man I think can doubt our right to adopt such a measure, it being only a
commercial regulation, such as every independent nation may rightfully
make whenever her interest or convenience require it. It would, in my
opinion, be most likely to effect our object, because it would most
deeply touch that tender point, their interest; and it is their interest
which governs them. If we forsake their workshops and warehouses, it
will materially affect their manufactures and trade. Indeed, to use the
language of the gentleman from Pennsylvania, it will reach the vitals
of her commerce; and if it were to go to the vitals of their nation,
the fault is not ours; they are the aggressors, we act on the defensive
only. If, sir, that nation has two millions of people employed in the
cloth manufacture alone, as was stated by a gentleman from Maryland,
(which number, however, I think too large,) she must at least have four
millions in the whole employed in manufactures of all kinds. We take from
her of these manufactures to the amount of thirty millions annually--a
market for which she cannot find elsewhere. Interdict the importation of
her goods, and what is the consequence? She cannot pay, and therefore
cannot employ her workmen. She will not find her account in manufacturing
goods annually to the amount of thirty millions of dollars more than
she can find a market for; therefore her workmen, at least one million
of them, will be out of employment. How are they to subsist? How can
they get their bread? Other means they have not; they cannot find any
other occupation; and, if they could, they are not fitted for them.
This derangement of business must be severely felt; their merchants and
manufacturers will, I believe, be persuasive advocates for us. They will
feel the evil, and will powerfully press the Government to do us justice.
The Minister will be convinced of the danger. He will be careful not
to suffer our custom to be diverted from England; for he knows if the
channel of our trade is once turned, it will not easily, if ever, be
restored. He will pause before he finally drives his best customer to
the necessity of leaving him; for he cannot be ignorant that our trade,
consisting of the exportation of raw materials, and the importation of
wrought manufactures, will be courted by other nations, who will soon
find it for their interest to accommodate us with a supply of our demands
on satisfactory terms. I consider, Mr. Chairman, that our commerce is and
will be so available to the nations of Europe, as to furnish us the means
of commanding respect and procuring justice by commercial regulations. I
have no fear that Great Britain will venture on a war with us; but if,
from a predetermination to quarrel with us at all events, she should make
a commercial regulation, or any other of our measures, a pretext for
hostilities, notwithstanding all that has been said on the floor of this
House by certain gentlemen, to disparage the troops or militia of our
own country, and of our weakness, inferiority, and inability to defend
ourselves, and to prove the invincible power of Great Britain, yet I
trust she would still find us Americans.
Mr. J. RANDOLPH.--I should have been better pleased if the gentleman who
has so eloquently painted the wrongs which we have received from Britain
had, instead of telling us of the disease, pointed out the remedy. The
gentleman a few days ago offered himself as a collateral security for the
facts stated by the President and our illustrious Minister at the Court
of London. Did the gentleman believe that what we could not take from
them, we should accept from him? That our commerce has been pirated upon
and our seamen impressed we all knew before. But where is the remedy?
Gentlemen say they are for taking commanding ground, that will ensure
respect. Where is it? Let them give in their project. Is this the remedy,
or is this the time? Gentlemen tell us we ought not to stop short of
indemnity for the past and security for the future. Are they then for
going to war with Britain on the same ground which Mr. Pitt took with the
French Republic? Do they expect success in their project? And is peace to
be destroyed, and the interests of this people compromitted, until what
they please to call indemnity and security shall be obtained? Are they
for going to war with Spain and France, and making a similar convention
with them that we some time since made with Britain for spoliations
committed on our commerce, and then by a kind of legerdemain draw from
our own pockets wherewith to pay for those very spoliations? Is this the
indemnity they expect to obtain? I want none of it. I almost dread to
see a convention with any power across the Atlantic, with a stipulation
to pay money, as I fear its only tendency would be to deprive us of that
we have left. Make any sort of convention you please, and something will
scarcely fail to fall out between the cup and the lip, by which you will
have to pay the debts due to you by others. By some sort of legerdemain,
the money of your _bona fide_ citizens will get into the pockets of your
diplomatists or their creatures on this and the other side of the water,
into the hands of bureau men, of counting-house politicians. But I find
gentlemen undertake to say, because I am indisposed to go to war, I am
the advocate and apologist of Great Britain; and because I quote the able
pamphleteer, who stands forth the godfather of the doctrines contained
in it, I abjure them; and so far from costing me six cents, they cost
me one hundred and fifty; and I consider that a better bargain than the
other pamphlet, which did not cost me a sous. Am I to be considered
as the apologist of Britain, because the defence of this country has
been committed to weak advocates, or because its cause has been weakly
defended or treacherously abandoned? No; I am the advocate of the
circumstances of the times--of the constitution of this people--of common
sense--of expediency. What does the gentleman from New York tell you? I
admire the resentment he feels for the wrongs committed on our country,
and I entertain a respect for him. He tells you every thing I have told
you--that American merchants are employed in covering enemy’s property.
No, he draws a distinction between native and adopted merchants, and says
that he considers the latter as the root of the evil. I agree that this
trade is carried on by foreigners naturalized among us. But the gentleman
says the other nations of Europe treat us on the principle that free
ships make free goods; while Great Britain treats us on the opposite
principle, and contends for the principle of contraband of war, and the
liability of enemy’s property to seizure. Why is there this difference?
Because those who treat on the principle of the _mare liberum_ find it
their interest to treat on this principle. But do they who have the
mastery of the ocean consider it as their interest? And yet the gentleman
arraigns one country for being governed by her own interest, while he
applauds another for being governed by the same feelings.
But the gentleman says the Federal Constitution grew out of commerce.
Indeed! I have always understood it grew out of the feeble and lax state
of our Federation. I have no doubt the regulation of commerce, and the
hope of obtaining an adequate revenue, aided its formation. But will
the gentleman undertake to say the constitution was made to give us the
mastery of the seas? If so, I will be glad to see how he makes it out.
Will he say the finger of Heaven points to war?
Mr. J. CLAY said he was sorry the committee were determined to press this
subject. He believed a delay of four or five days would be important; he
therefore moved that the committee should rise.
Mr. ALSTON said, it would certainly be unnecessary for the committee to
rise, with a view to decide upon the resolution offered by the gentleman
from Pennsylvania, (Mr. GREGG.) The committee having refused in the first
instance to take up this resolution, and having acted upon that which had
been submitted by the gentleman from Maryland, (Mr. NICHOLSON,) was a
sufficient evidence of the sense of this House as to its final adoption
or rejection. The newspapers emanating from this place to all parts of
the United States would convey the sense of the House as fully upon the
resolution as though a final vote should have been taken; and should the
resolution offered by the gentleman from Maryland be now decided upon,
and agreed to, every one would be satisfied that the one offered by the
gentleman from Pennsylvania would not be adopted.
Mr. A. said it was time--high time--that this House had come to some
determination upon this important subject. It was time that the public
mind was put to rest. It was time that the American people were informed
of the extent that we intended to go, and of the steps we intended to
take towards Great Britain, in order to meet the aggressions committed by
that Government upon the commerce of our country. He verily did believe
the resolution submitted by the gentleman from Maryland, the merits
of which it was in order upon the present motion to discuss, better
calculated to have the desired effect upon that Government on whom it
was intended to operate, than any other plan or project which had been
submitted or talked of, inasmuch as it was only a commercial regulation
or restriction, acknowledged by all Governments in the world to be
perfectly within the control of every independent nation. Some gentlemen
had thought it not sufficiently strong--that something more efficient
should be adopted. For his part, he did believe it much stronger, as to
the effect it would have in bringing Great Britain to terms of amicable
adjustment, than that which had been submitted by the gentleman from
Pennsylvania, and which was now sleeping on the table. This, Mr. A.
said, was that kind of commercial regulation that carried with it the
appearance of a determination to persevere in it; and, in his humble
opinion, it was well calculated to distress that nation who had so long
persisted in a regular system of aggression towards us. On the contrary,
that which had been submitted by the gentleman from Pennsylvania was
such a one as Great Britain would plainly discover we ourselves did not
mean to persevere in, because it would readily be seen, that, while it
distressed her, it would be equally injurious to us. Another reason
suggested itself why he would prefer the resolution now under discussion.
It seemed to be understood, on all sides, let which should be adopted,
or whatever course should be pursued, that no system was to go into
operation immediately--that full time was to be given for an attempt
at friendly negotiation. It was intended as an expression of public
sentiment. It was, therefore, of great importance to this nation, that
the sentiment expressed should be with as much unanimity as possible.
It was evident to all that the resolution offered by the gentleman from
Pennsylvania, from the violent opposition it had met with, could not,
if carried at all, be carried by that majority that the one now under
discussion could. If, therefore, he in the first instance had been in
favor, he should, after the discussion which had already taken place,
think himself, for the sake of harmony alone, perfectly justified in
abandoning it. The resolution now under discussion, which was offered by
the gentleman from Maryland, could not be objected to, as the other had
been, on the ground of its being in any manner whatever calculated to
produce war, if adopted in the full extent in which it was submitted. The
object of the present resolution is a prohibition of certain articles,
the growth and manufacture of Great Britain and her dependencies, from
being imported into the United States; most of which articles, Mr.
A. said, he was advised by those better acquainted than himself with
mercantile transactions, could be obtained from other countries; and
those which could not be obtained, we could either do very well without,
or raise within ourselves. What effect, then, would this measure have
upon Great Britain? No person would deny that it would lessen in her
own country the value of her manufactures. Whilst our citizens at home
were perfectly content, the voice of the artisan, the manufacturer, and
the laborer in Great Britain, would be raised against the aggressions
committed by their own Government, which caused us, and in fact compelled
us, in self-defence, to enter into the regulation proposed.
MONDAY, March 17.
_Importations from Great Britain._
The motion for the committee to rise having been rejected, the question
was taken on the resolution originally proposed by Mr. NICHOLSON, when
the committee rose, and the House concurred in its adoption--yeas 87,
nays 35, as follows:
YEAS.--Evan Alexander, Willis Alston, jr., Isaac Anderson,
David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger,
Barnabas Bidwell, William Blackledge, John Blake, jr., Thomas
Blount, Robert Brown, John Boyle, William Butler, George W.
Campbell, John Chandler, John Claiborne, Christopher Clark,
Joseph Clay, Matthew Clay, George Clinton, jr., Frederick
Conrad, Jacob Crowninshield, Richard Cutts, Ezra Darby, William
Dickson, Peter Early, James Elliot, Ebenezer Elmer, John W.
Eppes, William Findlay, James Fisk, John Fowler, Peterson
Goodwyn, Edwin Gray, Andrew Gregg, Isaac L. Green, Silas
Halsey, John Hamilton, William Helms, David Holmes, John G.
Jackson, Thomas Kenan, Nehemiah Knight, Michael Leib, Matthew
Lyon, Duncan McFarland, Patrick Magruder, Robert Marion, Josiah
Masters, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow,
John Morrow, Gurdon S. Mumford, Thomas Newton, jr., Joseph H.
Nicholson, Gideon Olin, John Pugh, Thomas M. Randolph, John Rea
of Pennsylvania, John Rhea of Tennessee, Jacob Richards, John
Russell, Peter Sailly, Thomas Sammons, Martin G. Schuneman,
James Sloan, John Smilie, John Smith, Samuel Smith, Henry
Southard, Joseph Stanton, David Thomas, Uri Tracy, Joseph B.
Varnum, Matthew Walton, John Whitehill, Robert Whitehill,
Eliphalet Wickes, David R. Williams, Marmaduke Williams, Nathan
Williams, Alexander Wilson, Richard Wynn, Joseph Winston, and
Thomas Wynns.
NAYS.--Silas Betton, Phanuel Bishop, James M. Broom, John
Campbell, Levi Casey, Martin Chittenden, Leonard Covington,
Samuel W. Dana, John Davenport, jr., Elias Earle, Caleb Ellis,
William Ely, James M. Garnett, Charles Goldsborough, Seth
Hastings, David Hough, James Kelly, Joseph Lewis, jr., Jonathan
O. Mosely, Jeremiah Nelson, Roger Nelson, Timothy Pitkin,
jr., Josiah Quincy, Thomas Sanford, John Cotton Smith, Thomas
Spalding, Richard Stanford, William Stedman, Lewis B. Sturges,
Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Philip R.
Thompson, Daniel C. Verplanck, and Peleg Wadsworth.
Mr. EARLY moved that the resolution be referred to the Committee of Ways
and Means to bring in a bill.
WEDNESDAY, March 19.
_Death of Senator Jackson, of Georgia._
A message from the Senate informed the House that the Senate, having been
informed that the honorable JAMES JACKSON, Esq., one of the Senators from
the State of Georgia, died yesterday, have appointed a committee to take
order for superintending his funeral.
The House then proceeded to consider the said message: Whereupon,
_Resolved, unanimously_, That this House will attend the funeral of JAMES
JACKSON, Esq., late a member of the Senate of the United States.
_Resolved, unanimously_, That the members of this House do wear mourning
on the left arm for the space of one month, in testimony of their respect
for the memory of that distinguished revolutionary patriot.[36]
_Canal at the Rapids of the Ohio._
Mr. BOYLE, from a committee appointed, on the tenth ultimo, on the
memorial of the Legislature of the State of Kentucky, made a report
thereon; which was read, and referred to the Committee of the Whole,
to whom was committed, on the fifth instant, the report of a select
committee on the petition of the President and Directors of the
Chesapeake and Delaware Canal Company. The report is as follows:
That, of the practicability of opening the proposed canal, and
of its preference to one contemplated on the opposite side of
the river, as well on account of the greater facility of its
accomplishment, as of the superior advantages that would result
to the navigation of the river, when accomplished, may, in the
opinion of the committee, be correctly estimated by reference
to a draft of part of the river, and notes explanatory thereof,
which accompany the memorial. Of the immense utility of the
proposed canal no one can doubt who reflects for a moment
upon the vast extent of fertile country which is watered by
the Ohio and its tributary streams, and upon the incalculable
amount of produce which must, of course, necessarily find its
way to market by descending that river and encountering the
danger and difficulties of passing its rapids. But, besides
the general advantages which would result from the completion
of the proposed canal, it is, in the opinion of the committee,
particularly interesting to the United States, inasmuch as it
would greatly enhance the value of the public lands north-west
of the Ohio. There can be but little doubt that, by the
additional value it would give to the public lands, the United
States would be more than remunerated for the aid which the
Legislature of Kentucky have solicited.
From these considerations the committee would not hesitate
to recommend a donation or subscription of shares to the
amount contemplated by the law of the Legislature of Kentucky
incorporating the Ohio Canal Company, if they believed the
state of the public finances was such as to justify it. But,
from the applications already made for aid in opening canals,
it is probable that, if the United States enter upon expenses
of this kind, those expenses cannot be inconsiderable; and, as
the revenue of the United States is already pledged, almost
to the full amount, for purposes, though not more useful, yet
more urgent, the committee are induced to submit the following
resolution.
_Resolved_, That it is inexpedient to grant, at present, the
aid solicited by the Legislature of Kentucky, in opening a
canal to avoid the rapids of the Ohio.
FRIDAY, March 21.
_Potomac Bridge._
An engrossed bill to authorize the erection of a bridge over the river
Potomac, in the District of Columbia, was read the third time; and
on the question that the said bill do pass, it was resolved in the
affirmative--yeas 61, nays 52.
About 2 o’clock Mr. D. R. WILLIAMS said he had a motion to make, which
required the galleries to be cleared. They were accordingly cleared.
WEDNESDAY, March 26.
_Importation of British Goods._
The bill to prohibit the importation of certain British goods, wares, and
merchandise, was read the third time.
The yeas and nays were called for on its passage.
The question to recommit the bill having been disagreed to, it
passed--yeas 93, nays 32, as follows:
YEAS.--Evan Alexander, Willis Alston, jr., Isaac Anderson,
David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger,
Barnabas Bidwell, William Blackledge, John Blake, jr., Thomas
Blount, Robert Brown, William Butler, George W. Campbell, John
Chandler, John Claiborne, Christopher Clark, Joseph Clay,
Matthew Clay, George Clinton, jr., John Clopton, Frederick
Conrad, Orchard Cook, Leonard Covington, Jacob Crowninshield,
Richard Cutts, Ezra Darby, John Dawson, William Dickson,
Elias Earle, Peter Early, James Elliot, Ebenezer Elmer, John
W. Eppes, William Findlay, James Fisk, John Fowler, Peterson
Goodwyn, Edwin Gray, Andrew Gregg, Isaiah L. Green, Silas
Halsey, John Hamilton, William Helms, David Holmes, John G.
Jackson, Walter Jones, Thomas Kenan, Nehemiah Knight, Matthew
Lyon, Duncan McFarland, Patrick Magruder, Robert Marion,
Josiah Masters, William McCreery, Nicholas R. Moore, Thomas
Moore, Jeremiah Morrow, John Morrow, Gurdon S. Mumford, Roger
Nelson, Thomas Newton, jr., Joseph H. Nicholson, Gideon Olin,
John Pugh, Thomas M. Randolph, John Rea of Pennsylvania,
John Rhea of Tennessee, Jacob Richards, John Russell, Peter
Sailly, Thomas Sammons, Martin G. Schuneman, Ebenezer Seaver,
James Sloan, John Smilie, John Smith, Samuel Smith, Henry
Southard, Joseph Stanton, David Thomas, Uri Tracy, Philip Van
Cortlandt, Joseph B. Varnum, Matthew Walton, John Whitehill,
Robert Whitehill, David R. Williams, Marmaduke Williams, Nathan
Williams, Alexander Wilson, Richard Wynn, and Joseph Winston.
NAYS.--Silas Betton, James M. Broom, John Campbell, Martin
Chittenden, Samuel W. Dana, John Davenport, jr., Caleb Ellis,
William Ely, James M. Garnett, Seth Hastings, David Hough,
Joseph Lewis, jr., Jonathan O. Mosely, Jeremiah Nelson, Timothy
Pitkin, jr., Josiah Quincy, John Randolph, Thomas Sanford,
John Cotton Smith, Thomas Spalding, Richard Stanford, William
Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge,
Samuel Tenney, Philip R. Thompson, Thomas W. Thompson, Abram
Trigg, Killian K. Van Rensselaer, Daniel C. Verplanck, and
Peleg Wadsworth.
THURSDAY, March 27.
_Introduction of Slaves into Territories._
Mr. D. R. WILLIAMS, from the committee appointed on the seventh ultimo,
presented a bill to prohibit the introduction of slaves into the
Mississippi Territory, and the Territory of Orleans; which was read
twice, and committed to a Committee of the Whole on Saturday next.
FRIDAY, March 28.
_Plurality of Offices._
The House resolved itself into a Committee of the Whole on the following
resolutions submitted some time since by Mr. J. RANDOLPH.
_Resolved_, That a contractor under the Government of the
United States is an officer within the purview and meaning of
the constitution, and, as such, is incapable of holding a seat
in the House.
_Resolved_, That the union of a plurality of offices in the
person of a single individual, but more especially of the
military with the civil authority, is repugnant to the spirit
of the Constitution of the United States, and tends to the
introducing of an arbitrary government.
_Resolved_, That provisions ought to be made, by law, to render
any officer in the army or navy of the United States, incapable
of holding any civil office under the United States.
The question was taken on these resolutions without debate.
The first was agreed to--ayes 54, noes 37.
The second was agreed to--ayes 75; and
The third was agreed to without a division.
When the committee rose and reported their agreement to the resolutions.
The House immediately considered the report.
On concurring with the Committee of the Whole in their agreement to the
first resolution,
Mr. FISK said he sincerely regretted it was not in his power to vote
for this resolution. He regretted there was no such principle in the
constitution as is prescribed. Such a principle not being in the
constitution, he did not conceive it in the power of the House to make
the provision. It was not, in his opinion, in their power to say a man
should not hold a seat in that House who was not prohibited by the
constitution. It was on this ground only he was against the resolution
under consideration.
Mr. J. RANDOLPH.--I think the gentleman from Vermont may in perfect
consistence with the principle he has laid down, which I do not mean
at present to contest, give his vote in favor of this resolution. He
says that this House has not a right to make a disqualification which
the constitution itself does not attach to the tenure of a seat on this
floor; that the constitution draws a line between the qualification
and disqualification of a member, and that this House has no right to
alter them. What do we propose to do? To add a new disqualification?
No; to do that which the constitution put in our hands, which it not
only authorizes but enjoins upon us. The constitution declares that
each House shall be the judge of the qualification of its members. It
is clearly, then, the duty of the House to expound what is or is not a
disqualification; and we are now only about to declare what is such a
disqualification--merely to expound the constitution on this head. I know
some gentlemen are startled at the idea of expounding the constitution.
But do we not do this every day? Is not the passage of every act a
declaration on the part of this House that a decision upon it is among
their constitutional powers? Or, in other words, is it not an exposition
of the constitution? So, in this instance, I will suppose a man returned
to serve as a member of this House, and that he is declared, for some
reason, to be disqualified from holding a seat. This, according to the
gentleman, would be expounding the constitution. We propose doing no more
than saying, if the Secretary of State, or Chief Justice, should come
here, they cannot hold a seat. We say that an abuse exists under the
constitution, and offer a remedy.
I have heard some quibbling about the meaning of the word “officer.”
What is the meaning of office? Agency; it is the office of a man’s cook
to dress his dinner, of a tailor to supply him with clothes; and it is
the office of a contractor to fatten on the land--to acquire lordships,
demesnes, baronies--extensive territory--by the advantage he derives from
holding the public money, in virtue of his contract. But it is asked, if
a contractor is an officer; and whether he can be impeached? because,
under the constitution, all civil officers are liable to impeachment.
Would you impeach the Marshal of the District of Columbia? It may be
answered that you may impeach him, but that you would not probably do
so, because that would be breaking a butterfly on the wheel. Would you
impeach a deputy postmaster? And yet when the postmaster at New York
accepted his appointment, did he not vacate his seat in the Senate? There
is no doubt a contractor is an officer _pro tempore_--it is not an office
in perpetuity, but created for a time, and for a particular purpose.
And I will ask, if it is not more dangerous to the independence of the
two Houses to admit commissioners and contractors within their walls
than officers with legal salaries and appointments? If we are to admit
either, I say, give me the legal officer, with a determinate salary and
definite powers, rather than the contractor who may gain thousands and
tens of thousands of dollars by a single job. But, if the gentleman from
Vermont is of opinion that a contractor is not an officer, under the
constitution, I hope he will join me in another vote, on an amendment
which I shall beg leave to offer--this goes only to purge these walls,
not those of the other House. I mean an amendment declaring void all
contracts made with members of either House, and on this principle:
between the sessions of the Legislature it is possible for a member to
receive a lucrative job, by which he may put thousands in his pocket,
and which being completed in the recess, and there being nobody to take
cognizance of it, it will be impossible to apply a remedy. But, I hope
this construction, which, so far as relates to our own House, we have
an undoubted right to make, will obtain as the true construction of the
constitution.
But it is said that this House, and Houses which may hereafter meet, may
give the constitution a different construction. No doubt of it; and this
may operate to the end of time. A former House passed a sedition law; a
subsequent House deemed the law unconstitutional. It is true they did not
declare it so, and I am sorry for it; but there is no doubt of the fact.
Now, we may pass a sedition law again to-morrow, and the people rise up
against it, and send different members to represent them. The people may
again slumber; as long as you keep your hands from their pockets, they
will keep their eyes from yours; and, in the same way, this law may be
repealed. I can, therefore, see no force in this objection. The courts of
justice undertake to expound the constitution, and shall not the House
of Representatives be as competent to do this as any court of justice?
I will suppose a case, that of a man condemned under the Sedition law
by a tribunal of justice. Suppose men of different principles come on
the bench, would they hesitate to reverse the preceding decision of the
court? Indisputably not. Here, too, then, we would behold varying and
repugnant decisions.
Mr. EPPES.--I have no doubt that every objection which can be made to
a member of this House holding a civil office during his continuance
as a Representative, applies with equal force to his holding a
lucrative contract. The framers of the constitution in excluding civil
officers from the floor of this House, most certainly intended to
prevent any species of dependence which might influence the conduct
of the Representative--to prevent his looking up for preferment to
the Executive, or being biased in his vote by Executive favor. A
lucrative contract creates the same species of dependence, and every
objection which could be urged against an officer, applies with equal
force against contractors, who are dependent on the Executive will,
and particularly carriers of the mail. While, however, I make this
admission, I do not believe we have power to pass this resolution. The
words of the constitution are: “No person holding an office under the
United States shall be a member of either House during his continuance
in office.” These words are plain and clear. Their obvious intention
was to have excluded officers, and officers only. It would certainly
have been equally wise to have excluded contractors, because the reason
for excluding officers applies to them with equal force. We are not,
however, to inquire what the constitution ought to have been, but what
it is. We cannot legislate on its spirit against the strict letter of
the instrument. Our inquiry must be, is he an officer? If an officer,
under the words of the constitution, he is excluded; if not an officer,
we cannot exclude him by law. It is true, as has been stated, that, by
the constitution, we are made the judges of the qualifications of our
own members. This judgment, however, is confined within very narrow
limits. The constitution prescribes the qualifications of a member. We
can neither narrow nor enlarge them by law. Our inquiry can go no further
than this: has the Representative the qualifications prescribed by the
constitution? An extensive meaning has been given to the word “office.”
How far such a construction of the meaning of this word is warranted, I
leave for others to decide. That all contractors are not officers, I am
certain. A man, for instance, makes a contract with the Government to
furnish supplies. He is certainly not an officer, according to the common
and known acceptation of that word. He is, however, a contractor, and,
under this resolution, excluded from a seat here. A carrier of the mail
approaches very near an officer. The person takes an oath, is subject
to penalties, the remission of which depends on the Executive. His
duties are fixed and prescribed by law. Near, however, as this species
of contract approaches to an office, I do not consider that the word
“office” in the constitution can include even this species of contract.
I consider the word “office” in the constitution ought to be construed
according to the usual import and meaning of that term; and as I do
conscientiously believe that the word “office” and the word “contract”
cannot be tortured to mean the same thing, I shall vote against the
resolution.
Mr. ALSTON.--While I am as much opposed as any man to see any holder of
public money within these walls, I cannot justify myself in declaring
what is or what is not the constitution. If in any case this ought to be
done, this surely should be the last. What is its effect? To deprive a
member of his seat on the vote of a bare majority, when the constitution
has declared that “no seat shall be vacated, but on the vote of
two-thirds of the members.” Let this House say so, and what becomes of a
contractor, if any such there be within these walls? The decision of the
House will be in violation of the constitution. No man who knows me will
imagine that I have any partiality for contractors holding seats within
these walls. I have never held a contract, or received a cent of the
public money but for my wages as a member of this House. I am, therefore,
as disinterested as man can be on this point. If there is a contractor
within the meaning of the constitution, let him be pointed out. I am not
certain how I shall vote upon such a proposition. But I will not declare
beforehand a particular construction of the constitution. If I believe
the case comes within the constitution, of which I am not certain, I will
vote for clearing the House of such a member. But I will not consent to
a majority declaring in this way what they cannot carry into effect.
How can this be done? If you cannot get two-thirds of the members of
this House to vacate the seat, I ask what becomes of the resolution
declaratory of the meaning of the constitution? But it is idle to pass a
declaratory resolution unless it can be carried into effect. One thing
I will say, if the mover will modify his resolution so as to impose
a penalty on any officer who shall make a contract with a member of
Congress, I will give it my consent. For I wish to see no man in these
walls dependent on the Government. I still adhere to the principle which
I set out with, when I entered into public life, for I became a member of
the legislature of the State which I have the honor to represent at the
age of twenty-one; but there was no office in the gift of any government
which I would possess. This is a principle to which I strictly adhere,
and I do not believe I have any relation on earth who holds an office,
numerous as my relatives are.
Mr. R. NELSON said he was sorry that he could not on this occasion,
consistent with the oath he had taken to support the constitution,
advocate the resolution under consideration. He agreed that it was highly
improper for contractors to hold seats in that House, as there were many
cases in which they could not give a free and impartial vote; but in his
opinion there was no power to exclude members from a seat, unless that
power was contained in the constitution. He said he would give his idea
of the spirit and meaning of the constitution on this point. They were
bound by its letter--where the letter and the words of it were plain,
they were bound strictly to adhere to them; where, from the wording,
the meaning was doubtful, or difficult, every member was bound to put
that construction which his judgment dictated. But where there was no
difficulty, where the words were plain and obvious, he would ever raise
his hands against what was called the spirit of the constitution, or, in
other words, giving it a meaning which the words would not bear. If this
power existed in the constitution, it must be found under that section
which declares, that “No Senator or Representative shall, during the
time for which he was elected, be appointed to any civil office under
the authority of the United States, which shall have been created, or
the emoluments of which shall have been increased, during such time;
and no person holding any office under the United States shall be a
member of either House, during his continuance in office.” The question
then comes to the single point: Is a contractor an officer under the
constitution? If he is, there is no doubt he may be excluded from a
seat in this House; but if he is not, he cannot be excluded. What then
is the idea of an officer under the constitution? It either must be
recognized by the constitution, or some law passed in conformity to
it, for no man under the Government has a right without law to create
as many offices as he pleases. The Postmaster-General has a right to
contract for carrying the mail; he may employ for this purpose fifty,
five hundred, or five thousand men. Will any body thence contend that
the Postmaster-General has the right of creating five thousand offices?
Our constitution has been justly extolled as the freest in the world,
and as the best calculated to promote the happiness and security of the
people. It has been called free in contradistinction to those despotic
governments, where all the offices are held up to sale. Is not this the
case with contracts? Are they not uniformly given to the lowest bidder?
What government of principle then is this, which proposes to put a
construction upon the constitution, by which offices under the Government
shall be thus exposed to sale? But are they in truth officers of the
United States, recognized either by the constitution or laws? No, they
are not officers of the United States, they are mere hirelings of the
Postmaster-General; he has not the power of setting up the constitution
to the highest bidder. If so, it is no longer a free constitution; it
does not deserve the eulogiums which have been so justly passed upon it.
Mr. EARLY.--I would not rise to trouble you were not the yeas and
nays to be recorded on this question. I am as fully sensible as the
honorable mover of the resolution, or any other gentleman on this
floor, of the extreme impropriety, to say the least of it, of persons
remaining members of this House who hold a contract under the Government
to which any emolument is attached. With him and them I believe, that
of all descriptions of appointment, this is the most improper to be
blended, where the emoluments are not fixed by law, but rise or fall
with circumstances. I am therefore as willing as any person can be to
adopt any measure to effect a remedy of this evil, which we possess
the constitutional right of doing. My difficulty on this subject is
not the same with that presented to the minds of some gentlemen, that
we are not authorized to pass a resolution putting a construction upon
the constitution. On this subject, by the constitution we are made
judges of the qualifications of the members of this House. If so, we are
necessarily judges of their disqualification also. One power implies
the other. I therefore have no difficulty on this score. The simple
question is, in my mind, whether a contractor is an officer under the
constitution? My own opinion is decidedly in the negative--an opinion
formed after the most mature reflection. I can appeal to you, sir, that I
have sought after truth on this subject with industry; and I can appeal
to other members to attest my having contemplated early in the session
the offering a resolution as the foundation of a law, to give effect to
the object of the gentleman from Virginia, to declare void any contract
made by any officer under this Government with any member of either
House. So far I am prepared to go, if any member shall introduce such a
proposition. The passage of such a law will remove the inconvenience
which might arise from interfering decisions made in this House at
different times, and will prevent the existence of a different rule in
the two branches of the Legislature.
Mr. J. RANDOLPH admitted that this might be, as he was convinced it was
with many gentlemen, and hoped it was with all, a question admitting
of a fair difference of opinion. It was a question that respected the
construction of the Constitution of the United States. The point in
issue, whether a contractor is or is not an officer of the United States,
had been set aside by being begged. Gentlemen argue as if it was proposed
to add a new qualification to holding a seat on this floor, when in
truth, no such question existed; the only question was, whether there
was an existing disqualification. While I am up, said Mr. R., permit
me to say the gentleman from Maryland has, with a peculiar infelicity,
abandoned the ground which he had first taken. He says that a contract
cannot be an office, because the former are put up to sale; and because
no man, under the constitution, can possess the power of creating an
indefinite number of offices. And yet, how are those men who carry
the mail or discharge the duties of postmasters appointed, but on the
mere _dictum_ of the Postmaster-General? And how are foreign Ministers
appointed? They are not appointed by law. The President nominates as many
as he pleases, and is only limited by the money at his disposal. As to
the offices under the Postmaster-General, as has been alleged, being let
to the lowest bidder, I believe it would be difficult to establish the
allegation. I understand that that is not the principle on which they
have been let out. We are told that a contract is nothing but a bargain.
It certainly is a bargain. But suppose the office of Postmaster-General,
as that seems in this debate to have engaged so much of the attention
of gentlemen, should be let to the lowest bidder; would the person that
discharged those duties be less an officer of the United States? There is
one office which I believe is always let to the lowest bidder--a common
executioner. Who is he? The deputy of the sheriff: and _quo ad hoc_, he
is as much an officer as the superior who employs him.
Mr. ELMER said it was perfectly clear to him, that the members of that
House were not at liberty to vote for the resolution under consideration.
Both common sense and the constitution forbade considering a contract in
the light of an office, and he had never before heard it contended that
they were equivalent terms. He would cordially give his vote for any law
which could be constitutionally passed, to get rid of speculation and
corruption of any sort, but the oath which he had taken to support the
constitution limited his power, which he could not transcend.
Mr. KELLY said he would concisely assign the reasons which would induce
him to vote against the resolution. He did not believe an officer and a
contractor meant the same things. With regard to the contractors holding
a seat on that floor, it might happen that a man might be a contractor
without being in the least disqualified from impartially discharging all
the duties of a member, as the contract which he formed might be more
for the good of others than his own benefit. He, however, allowed that
where a person held a seat, and made use of the power it gave him to
make a contract, he was highly censurable. Still he was of opinion that
it was not in the power of the House to declare the two appointments
incompatible, unless the constitution expressly authorized them. In
examining the constitution he found no such provision. Though it had been
attempted to be shown that a contractor and an officer were one and the
same, he believed they were very distinct things. A contractor receives
no authority from Government; his contract was derived from an officer,
and all the power he possessed was derived from him, who was only
amenable for the performance of the duty to the person who appointed him.
A contractor could not, therefore, be considered as an officer under the
constitution, amenable to the United States.
Several allusions, said Mr. K., have been made to cases which have
occurred under the Postmaster-General, but until these shall be
particularly pointed out, it will be impossible for us to decide how
we are to act. I believe that it does not become this House to pass
declaratory acts relative to the constitution. It ought, in my opinion
to stand on its own footing; and every case that is presented ought to
be decided, not by a declaratory act, but by the constitution itself.
My colleague says that the judges of the federal as well as State
courts take an oath as well as we do, to support the constitution; and
that, notwithstanding they are in the daily habit of construing the
constitution. But there is a wide difference between their deciding
particular cases which properly come before them, and this House going
into a general declaration without any such particular case. Would the
judges undertake to declare the meaning of the constitution without the
existence of a particular case calling for their decision? So that the
very thing which the House is about doing, has been invariably avoided by
the judges.
The question was then taken by yeas and nays on agreeing to the
resolution--yeas 25, nays 86.
MONDAY, March 31.
_Yazoo Claims._
A message was received from the Senate informing the House that they had
passed a bill to carry into effect the provisions of the eighth section
of the “Act regulating the grants of land, and providing for the disposal
of the lands of the United States south of the State of Tennessee.”
The bill having been read the first time--
Mr. R. NELSON said he should not, on this occasion, go into an
examination of the principles of the bill, as they were well understood
by the House. They went to practise one of the grossest impositions he
had ever known. In order to get rid of what he considered a stain on the
statute book, and a disgrace to the nation, he moved that the bill be
rejected.
The question was accordingly put from the Chair, “Shall the bill be
rejected?”
On the motion of Mr. LEIB, it was determined to take the yeas and nays.
The question was then put, Shall the bill be rejected? and passed in the
affirmative--yeas 62, nays 54, as follows:
YEAS.--Isaac Anderson, David Bard, Burwell Bassett, George M.
Bedinger, William Blackledge, John Blake, jun., Thomas Blount,
Robert Brown, William Butler, Levi Casey, John Claiborne,
Christopher Clark, Joseph Clay, Matthew Clay, John Clopton,
Frederick Conrad, John Dawson, Elias Earle, John W. Eppes,
James M. Garnett, Peterson Goodwyn, Edwin Gray, Andrew Gregg,
Silas Halsey, John Hamilton, David Holmes, Walter Jones, Thomas
Kenan, Michael Leib, Duncan McFarland, Robert Marion, Josiah
Masters, Nicholas R. Moore, Thomas Moore, John Morrow, Gurdon
S. Mumford, Roger Nelson, Thomas Newton, jun., Gideon Olin,
John Pugh, John Randolph, Thomas M. Randolph, John Rea of
Pennsylvania, Jacob Richards, Thomas Sammons, Thomas Sanford,
Ebenezer Seaver, James Sloan, John Smilie, John Smith, Samuel
Smith, Henry Southard, Thomas Spalding, Richard Stanford,
Philip R. Thompson, Abram Trigg, John Whitehill, Robert
Whitehill, David R. Williams, Alexander Wilson, Richard Wynn,
and Joseph Winston.
NAYS.--Willis Alston, jun., Joseph Barker, Silas Betton,
Barnabas Bidwell, John Campbell, John Chandler, Martin
Chittenden, Orchard Cook, Jacob Crowninshield, Richard Cutts,
Samuel W. Dana, Ezra Darby, John Davenport, jun., William
Dickson, James Elliot, Caleb Ellis, Ebenezer Elmer, William
Ely, William Findlay, James Fisk, John Fowler, Isaiah L.
Green, Seth Hastings, William Helms, David Hough, John G.
Jackson, James Kelly, Joseph Lewis, jun., Matthew Lyon, William
McCreery, Jeremiah Morrow, Jonathan O. Mosely, Jeremiah Nelson,
Timothy Pitkin, jun., Josiah Quincy, John Russell, Peter
Sailly, Martin G. Schuneman, John Cotton Smith, Joseph Stanton,
William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin
Tallmadge, Samuel Tenney, David Thomas, Thomas W. Thompson,
Uri Tracy, Killian K. Van Rensselaer, Joseph B. Varnum, Peleg
Wadsworth, Eliphalet Wickes, Marmaduke Williams, and Nathan
Williams.
So the bill was rejected.
Mr. J. RANDOLPH moved that the House adjourn. He said that a few days ago
the House had adjourned on account of the death of General Jackson. He
hoped they would now adjourn on account of his resurrection. For he had
told him, that if he could give a death-blow to the Yazoo business he
should die in peace. Adjourned, yeas 58.
TUESDAY, April 1.
_Plurality of Offices._
On motion of Mr. JOHN RANDOLPH, the House took up the report of the
Committee of the Whole on sundry resolutions agreed to by them on the
28th ultimo. When the question was put on concurring in the report of the
Committee of the Whole in their agreement to the second resolution as
follows:
2. _Resolved_, That the union of a plurality of offices in
the person of a single individual, but more especially in the
military with the civil authority, is repugnant to the spirit
of the Constitution of the United States, and tends to the
introducing of an arbitrary Government:
Mr. BIDWELL said he would very concisely assign his reasons for voting
against this resolution. It declares that “the union of a plurality of
offices in the person of a single individual, but more especially of the
military with the civil authority, is repugnant to the spirit of the
Constitution of the United States, and tends to the introducing of an
arbitrary Government.” It appeared to him that this was not a correct
declaration. If the constitution itself be referred to, it will appear
that it recognizes a union of civil and military offices in the same
person. Such a union is to be found in the First Magistrate of the United
States, who exercises the highest Executive civil functions, and is at
the same time Commander-in-Chief of the Army and Navy, and of the militia
while in actual service. The same principle pervaded the constitution, he
believed, of every State. There was also a union of civil and military
authority in several offices, by acts of Congress. This was the case with
the marshals in certain cases, and officers who are charged with the
superintendence of Territorial affairs. If it were proper, said Mr. B.,
as I do not think it is, by a vote of this House, to undertake to define
the constitution, it still appears to me that we cannot consistently
say that the union of a plurality of offices in the person of a single
individual, but more especially of the military with the civil authority,
is repugnant to the spirit of the Constitution of the United States. A
declaration of that kind would be a vote of censure on the people of the
whole United States, for having adopted the Federal Constitution, on the
people of the several States, for having adopted their constitutions, and
on the Legislature under both Governments, for having passed laws which
authorized such a union.
Mr. J. CLAY said, the objections of the gentleman arose from not having
properly considered the nature of the union of civil and military office
in the First Magistrate. By the constitution, the military was placed in
strict subordination to the civil power. For this reason the President
of the United States had placed under his control all the officers of
the Army and Navy. The union contemplated in the resolution before you,
said Mr. C., is that which gives the actual discharge of civil powers
to an officer who has actual command of your army. I ask if it was ever
in the contemplation of the constitution, that the President should in
person head your armies and command your fleets? I believe not. There
exists in one of the Territories such a union as is contemplated in the
resolution. In Louisiana a person holding the office of Governor, is at
the same time Commander-in-chief of the Army of the United States, in
virtue of his appointment of Brigadier-General. Will any man pretend to
say that a union of offices, such as these, the discharge of whose duties
is incompatible, is such a union as is contemplated in the constitution?
No; the union in the constitution was only intended to give the President
a control over the Army and Navy; while this resolution contemplates the
positive and actual union of powers in the same person, powers which at
the same time he may be called upon to exercise at different and distant
places. To separate these powers is the object of the resolution. I hope
the resolution will be agreed to, and the separation take place.
Mr. J. RANDOLPH.--My friend from Pennsylvania has left me little to
say on the question, and indeed I have heard nothing in the shape of
argument, or assertion, but what I was prepared to hear, and of which
I apprised the House some time ago. It has come out at last from the
lips of a man who has prided himself upon being the champion of the
Constitution of the United States to-day, although but a few days ago
he threatened us with a dissolution of the Union, that the constitution
has no spirit in it. He calls on any man to lay his finger on that
spirit. What does the Constitution of the United States say? Does it not
guarantee to each State a Republican form of Government? Is there no
spirit in this? Is not the constitution then devised under the influence
of a Republican spirit, for the benefit of the people who are governed
by it, and not for the exclusive benefit of those who administer it?
Will any man pretend to say that a Republic is any thing or nothing? And
that it is congenial to such a Government that the civil and military
authority should be vested in the same hands? Is it not of the very
essence of such a Government that the military should be kept in strict
subordination to the civil power? And have not your laws, which give to
marshals in certain cases a power over the military, been passed to keep
the military under such subjection? How is the military to be kept in
such subjection, when, according to the usage of the Romans, the leader
of an army is the Governor of a province? If the constitution has no
spirit in it, it is a dead, lifeless thing, not worth the protection of
any man of sense. But I am happy that it has a spirit, which I trust will
save this nation, even if its letter shall be killed.
Mr. QUINCY said he would merely observe, that, though it were true that a
union of civil and military offices in the same person was repugnant to
the spirit of the constitution, it was not true that a union of different
offices in the same person was repugnant to it. They had to-day united
two offices in the same person, in the bill relative to the Territory of
Michigan. They had heretofore constituted several of the officers of the
Government Commissioners of the Sinking Fund. He could see nothing in
the constitution which interfered with a plurality of offices, which in
many instances was attended with great practical benefit. As there was
therefore in the constitution nothing explicit against this union, he
could not vote for the resolution.
Mr. GREGG said he believed it was contrary to the spirit of the
constitution, that civil and military offices should be united in the
same person; but, he would ask, what benefit would result from such
a declaration? The power of appointing to office was vested in the
President and Senate, who were sworn to support the constitution. They
were, therefore, the judges of the powers with which they were invested.
In the exercise of this power, they have actually declared that they
do possess it. What does this resolution amount to? If they undertook
to declare the President guilty of such a flagrant act as involved a
violation of the constitution, it was their business to impeach him. Mr.
G. said, as he could see no good likely to arise from this resolution, he
should not vote for it. The practice it referred to was not new, though
he had always thought it wrong. He recollected, that, some years since,
the Governor of the North-western Territory was likewise Superintendent
of Indian Affairs and Commander-in-chief of the Army, for all which
appointments he drew pay, though no notice had been taken of it. Other
instances of the same kind might be pointed out. He did believe this
union was contrary to the spirit of the constitution--to the true spirit
of a Republican Government--and if the gentleman from Virginia would
bring forward an amendment to the constitution to prohibit such a union,
he would vote for it.
Mr. J. RANDOLPH.--Six years ago, there could not have been a doubt of the
right of this House to pass this resolution--now, the right is disputed.
Have we not a right to pass a resolution referring to the constitution,
in order to bring in a law grounded on it? Do we not do this every day?
One word as to the appointment of General Wilkinson. Gentlemen are fond
of sheltering themselves behind great names. I have no hesitation in
saying I think the Executive was wrong in making that appointment. I
have no hesitation in saying so here, though gentlemen who join me out
of doors are reluctant to make the same declaration on this floor. I do
not think, however, the persons who made the appointment as reprehensible
as the persons at whose importunate solicitation it was made. I believe
that a man of good sense, and of upright intentions, may be induced to do
that which his own judgment will afterwards condemn. It is well known,
that the ante-chambers of our great men were crowded with applicants
for offices in Louisiana. I have understood that for every office there
were at least one hundred and fifty applications. Thus much for the idea
which has been thrown out of the existence of a scarcity of characters to
supply these offices.
Mr. VARNUM considered the resolution as going too far, and said it was a
very common thing for two offices to be united in one man. It had been
usual to unite the diplomatic character with the military command in our
intercourse with the Indians, and a diplomatic character had likewise
been given to our naval commander in the Mediterranean. Instances of a
plurality of offices in one person were very numerous. If there existed,
at present, any case, in which such a union was incompatible with the
discharge of official duties, he hoped it would be pointed out; whether
there was or was not, he could not say. But where did the responsibility
for such appointments lie? Not that House, but the other branch of the
Legislature was responsible; for the correct discharge of whose duties
they were accountable to the people. Where, then, was the propriety
of an interference by the House? If the President made an appointment
against the spirit of the constitution, the people would know it. Was
it presumable that if a law was to pass this House, predicated on the
resolution under consideration, the other branch of the Legislature would
agree to it, after having sanctioned the appointments at which it is
levelled? Was this House to sit as a court of censure? The constitution
did not delegate such a power. Our very laws, in various cases, direct
the union of office prescribed by the resolution. Ought we not, then,
in the first place, to repeal those laws before we pass a resolution in
direct hostility to them?
Mr. V. said, he had no hesitation to observe, that the military and
civil office should, in general, be kept distinct; but he believed there
were cases where it was necessary. He was perfectly willing to leave the
responsibility where the constitution had placed it--in the hands of the
President and Senate. With regard to the union of the military office in
the cases alluded to, he would not undertake to say whether it was proper
or not. He could readily, however, conceive, that the union arose from
the most correct motive, as the country was a frontier, which might be
menaced with danger, and which might require the united exercise of the
military and civil authority to repel it.
Mr. J. CLAY said he would ask whether the ordinary union of military
and civil powers in the Governors of the Territories was such as that
contemplated in the resolution? The case of the Governor of Louisiana had
been alluded to, where the same person, he believed, received the pay of
Governor and Brigadier. Is that the case with the other Governors? He
believed gentlemen would not say that it was necessary that the Governor
of New Orleans should be a brigadier-general in the army; and yet they
allowed that to be the most vulnerable point on the frontier. If, then,
they say that the union is necessary in one case, they will admit that it
ought to be in the other.
Mr. LEIB said that, viewing the resolution as an abstract proposition, he
had no objection to giving it his support; but if it was intended as a
side attack upon the Administration, he was not prepared to vote for it.
Before he was prepared to act on it under this view, he wished for facts
which were not before the House. He, therefore, moved a postponement of
the resolution till Monday.
The motion to postpone was lost.
The question was then taken on agreeing to the resolution, and decided in
the negative--yeas 31, nays 81.
WEDNESDAY, April 2.
_Claim of Beaumarchais._
Mr. BASSETT presented to the House a petition of Amelia Eugene
Beaumarchais, heiress and representative of the late Caron de
Beaumarchais, deceased, by J. A. Chevallie, her attorney, which was
received and read, praying to be relieved from an unfavorable settlement
at the Treasury of the United States, of the accounts of the deceased,
for supplies furnished, and services rendered to the United States,
during the Revolutionary war with Great Britain.
_Ordered_, That the said petition be referred to the Committee of Claims.
_Charlestown, Va._
Mr. JACKSON called for the order of the day, on the report of the
Committee of Commerce and Manufactures, on the petition of sundry
inhabitants of Charlestown, in Virginia, praying that that place should
be made a port of entry.
Mr. LEIB moved an indefinite postponement of the report.
Mr. JACKSON opposed this motion, and spoke at some length in favor of the
constitutional right of the petitioners to be allowed a port of entry.
Mr. CROWNINSHIELD, though against postponement and in favor of discussing
the principle, contested the right.
Mr. LEIB withdrew his motion; when the motion to consider the report was
disagreed to--only 13 members rising in favor of it.
_Exclusion of Army and Naval Officers from Civil Offices._
The House took up the unfinished business of yesterday, being the report
of the Committee of the Whole, agreeing to the following resolution,
offered by Mr. J. RANDOLPH:
3d. _Resolved_, That provision ought to be made, by law, to
render any officer in the Army or Navy of the United States
incapable of holding any civil office under the United States.
Mr. FISK moved to postpone this resolution indefinitely.
This motion was supported by Messrs. FISK, ELMER, and COOK; and opposed
by Messrs. J. CLAY, J. RANDOLPH, and J. C. SMITH.
When the question was taken by yeas and nays, and the motion disagreed
to--yeas 43, nays 72.
The question was then taken that the House do agree with the Committee of
the whole House in their agreement to the said resolution, and resolved
in the affirmative--yeas 94, nays 21, as follows:
YEAS.--Willis Alston, jun., Isaac Anderson, David Bard, Burwell
Bassett, George M. Bedinger, Silas Betton, William Blackledge,
John Blake, junior, Thomas Blount, Robert Brown, William
Butler, John Campbell, Levi Casey, Martin Chittenden, John
Claiborne, Christopher Clark, Joseph Clay, Matthew Clay, John
Clopton, Frederick Conrad, Leonard Covington, John Dawson,
William Dickson, Elias Earle, Peter Early, James Elliot, Caleb
Ellis, William Ely, John W. Eppes, William Findlay, James
Fisk, James M. Garnett, Peterson Goodwyn, Edwin Gray, Andrew
Gregg, Silas Halsey, John Hamilton, Seth Hastings, David
Holmes, David Hough, John G. Jackson, Walter Jones, Thomas
Kenan, John Lambert, Michael Leib, Joseph Lewis, junior, Duncan
MacFarland, Robert Marion, Josiah Masters, Nicholas R. Moore,
Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely,
Gurdon S. Mumford, Thomas Newton, junior, Gideon Olin, Timothy
Pitkin, jun., John Pugh, Josiah Quincy, John Randolph, Thomas
M. Randolph, John Rea of Pennsylvania, Jacob Richards, Peter
Sailly, Thomas Sammons, Thomas Sanford, Martin G. Schuneman,
John Smilie, John Cotton Smith, John Smith, Samuel Smith,
Thomas Spalding, Richard Stanford, Joseph Stanton, William
Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge,
Samuel Tenney, David Thomas, Philip R. Thompson, Thomas W.
Thompson, Uri Tracy, Abram Trigg, Killian K. Van Rensselaer,
Peleg Wadsworth, Robert Whitehill, David R. Williams, Marmaduke
Williams, Nathan Williams, Alexander Wilson, Richard Wynn, and
Joseph Winston.
NAYS.--Evan Alexander, Joseph Barker, Barnabas Bidwell, John
Chandler, Orchard Cook, Jacob Crowninshield, Richard Cutts,
Ezra Darby, John Davenport, junior, Ebenezer Elmer, Isaiah
L. Green, James Kelly, William McCreery, Roger Nelson, John
Rhea of Tennessee, John Russell, Ebenezer Seaver, James Sloan,
Joseph B. Varnum, John Whitehill, and Eliphalet Wickes.
_Ordered_, That a bill, or bills, be brought, in pursuant to the said
resolution; and that Mr. JOHN RANDOLPH, Mr. DAVID R. WILLIAMS, and Mr.
JOHN C. SMITH, do prepare and bring in the same.
FRIDAY, April 4.
_Prohibition of Military Officers from holding Civil Office._
Mr. JOHN RANDOLPH, from the committee appointed on the second instant,
presented a bill to prohibit officers of the Army and Navy from holding
or exercising any civil office; which was read twice, and committed to a
Committee of the Whole to-morrow.
TUESDAY, April 8.
_Motion to Adjourn._
On motion of Mr. EARLY,
“_Resolved by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That
the President of the Senate and the Speaker of the House of
Representatives be, and they are hereby, authorized to adjourn
their respective Houses on Wednesday, the sixteenth of April
instant.”
_Ordered_, That the Clerk of this House do carry the said resolution to
the Senate, and desire their concurrence.
THURSDAY, April 10.
_Navy Appropriations._
The House resolved itself into a Committee of the Whole, on the bill
making appropriations for the support of the Navy of the United States,
during the year one thousand eight hundred and six.
The bill was read by sections.
The CHAIRMAN having read that part of the bill which makes an
appropriation “for repair of vessels, store rent, pay of armorers,
freight, and other contingent expenses,”[37]
Mr. J. RANDOLPH moved to fill the blank with $411,950.
Mr. D. R. WILLIAMS moved to strike out the words “and other contingent
expenses.” He said he made this motion with a view of ascertaining for
what objects these contingent expenses were intended to provide. He would
ask the Chairman of the Committee of Ways and Means for information
on this point. He believed the sum contemplated to be appropriated
unnecessarily large.
Mr. J. RANDOLPH said the gentleman had asked for information which it was
not in his power to give. He was as much in the dark as the gentleman
as to the items of contingent expenditure; and he should not have
moved to fill this blank with so large a sum, but from the conviction
that whether they provided the money or not, it would be spent, and an
additional appropriation be made the next session. Mr. R. said he viewed
an appropriation bill, under present circumstances, a mere matter of
form; he believed also all the items of appropriation might as well be
lumped together, and it might be declared that a million of dollars were
appropriated. Had he been governed by his own opinion, instead of the
forms which had been observed, he would have been in favor of drafting
the bill in this way, for this reason: If the expenditures of the Navy
exceeded this sum by $600,000 there was no doubt the next Congress would
make good the deficiency without any inquiry. He believed this, as what
had taken place once might take place again.
Mr. R. said he had addressed a note to the head of the department,
stating that on such a day the Committee of Ways and Means wished the
appropriation bill to be taken up, and expressing a desire that he would
give them information of the items of contingent expenditure, as they
consider the sum required unnecessarily large. He had received an answer
to this effect--the Secretary said he did not think the sum too large,
without entering into any explanation. Mr. R. added, gentlemen may fill
the blank as they please; it will be no check on the expenditure.
The Committee divided on agreeing to the sum named by Mr. RANDOLPH--ayes
46, noes 37.
Mr. D. R. WILLIAMS moved to strike out “and other contingent expenses.”
He had before said that he had been impelled to make this motion from a
sense of duty. This impression had been strengthened by the statement of
the Chairman of the Committee of Ways and Means. He could not think it
proper to make an appropriation to so large an amount, when the proper
organ of the House had without success required information from the head
of the department, from whom he had only received a mere opinion. He
hoped the committee would agree to strike out this general appropriation,
that all the items of contingent expenditure might be stated to the
House, and thereby form some check on the expenditure.
Mr. LEIB said he perceived in another part of the bill other mention
made of contingent expenses. He would be glad to know what they were.
The House ought to know the various items, or otherwise make a general
provision for contingent expenses, and leave it to the head of the
department to apply the money as he pleases.
Mr. DANA said the first contingent appropriation was for the navy, the
second for the marine corps. If striking out the proposed words would
enable the committee to obtain the information sought, he should vote
for the motion. He had no objection to voting liberally for a navy; but
he thought the Legislature ought to be well informed, as they would
otherwise scarcely discharge their duty to their constituents.
The motion of Mr. WILLIAMS, to strike out “and other contingent
expenses,” was disagreed to--ayes 32.
Mr. J. RANDOLPH moved to strike out that part of the bill making an
appropriation “for completing the marine barracks at the city of
Washington.” Mr. R. said this object appeared to require a standing
appropriation; and, though the building was finite, the appropriation
appeared to be infinite.
Motion agreed to--ayes 66.
The committee rose and reported the bill. The House having taken the
report of the committee into consideration,
Mr. D. R. WILLIAMS, called for the reading of the document, stating
the annual expenditures on the Navy, by which it appeared that the
expenditures had been as follows:
For 1798 $ 570,314 24
1799 2,848,187 26
1800 3,385,340 48
1801 2,117,420 74
1802 946,213 24
1803 1,107,925 32
1804 1,246,502 74
1805 1,409,949 67
--------------
Total 13,631,853 00
==============
Mr. D. R. W. renewed his motion to strike out “and other contingent
expenses.” He thought the House ought, under existing circumstances, to
show a disposition to economize, and to curtail the expenses of the Navy.
What is the necessity for this expenditure? Why, the Constitution is in
the mud, and the President[38] on her beam ends! Thirteen millions and a
half have been already expended, and it is now proposed to add $411,000
for contingent expenses. In making this motion I have no object but to
confine the Navy Department to proper expenses; but let them first state
what they are.
The SPEAKER observed that this motion could not be received until the
amendments of the committee had been acted upon.
Mr. D. R. WILLIAMS moved to strike out “for ordnance $50,000,”[39] He did
not perceive the use of this appropriation. No gentlemen accustomed to
travel, but must have seen the unprotected state of the ordnance; look at
the Turk’s house, you will there see it lying exposed. To his knowledge
it was in many other instances in the same situation.
This motion was lost--ayes 33.
The amendment of the committee to fill the blank with “$50,000,” was
agreed to, without a division.
Mr. EPPES offered a proviso declaring that a larger sum than $30,000
shall not be expended on the repairs of any one frigate.
Mr. J. RANDOLPH.--I shall vote against this motion on the same principle
that I voted to fill the blank relative to contingent expenses, with
$411,000. If we cannot restrain the expenditures of the Navy Department
within the sum annually fixed, after giving as much as is asked for, is
it not the idlest thing to attempt to restrain them by giving less? The
principle on which I voted for filling that blank was this: To give to
the Navy Department what it asks, that if, at the end of the year, more
shall be expended, the blame may fall on the shoulders of the Secretary,
and not on us. The sum appropriated for contingent expenses amounts to
$411,000; this is not the half, but it is more than a third of the whole
sum appropriated, and it may be expended on repairs or any other item of
contingent expenditure. It is enormous. But withhold the appropriation,
and where are you? The expense may be incurred, and the Government called
on to make good the deficiency; and there the business will end.
With regard to the sum requisite for the repair of a frigate, her
situation between this and the next year cannot be foreseen. The
Secretary may have estimated $30,000 as sufficient to repair any one
frigate as they now stand; but they may be placed in such a condition
as to require a much larger sum. But I am against the amendment, said
Mr. R., not only for these, but for other reasons. I will never consent
to legislate in such a way as to make it appear that we did legislate
intelligently, when in fact we do not. If I can be satisfied that $30,000
will be sufficient for the repair of a frigate, I may be induced to
vote for it. But even this would be unnecessary. For, after all, the
business must be confided to the Head of the Department; and he will
be a better judge of the sum required for the repair of a vessel than
we are. If he cannot be trusted, we ought, in my opinion, either to
refuse the appropriation altogether, or take a very different step from
that now proposed. For these reasons I am unwilling to appear to act
understandingly on a subject which I know nothing about.
Mr. EPPES.--When I made this motion, it was under the impression that
what is correct in private, is also correct in public conduct. We know
that, when a vessel owned by a merchant gets in a certain state, it is
more advisable to sell than to repair her. I do not know whether I have
fixed the proper sum. All I wish to try is, whether the United States are
disposed to repair at all events their frigates, whatever their state may
be, or limit the sum, after expending which they shall be abandoned. I
confess, however, that I am not anxious on this point. I merely wish to
try the sense of the House.
On agreeing to Mr. E.’s motion, the House divided--ayes 38, noes 57.
Mr. D. R. WILLIAMS.--The curtailing Navy expenses may be unpopular, but
I conceive it to be right. For that purpose I will renew the motion I
offered in committee. I am of opinion that all the expenditures of this
department should pass in review before the House. When I first came to
Washington, I went to the navy yard. I there saw an elegant building
going on. I inquired under what appropriation this was authorized, and
was answered, under the appropriation for contingent expenses. I remarked
other expenditures, and received the same information. These expenditures
may be all proper; but I think that every gentleman on this floor ought
to be enabled to tell his constituents how the public money is expended.
Talk to them of contingencies, and they will understand as little of the
term as of land in the moon. Mr. W. concluded by moving to strike out
“and other contingent expenses,” and calling the yeas and nays.
Mr. SMILIE said that no gentleman would censure him for attachment to
the Navy. He never had been, nor was he now attached to a Navy. But the
situation in which they were placed was well known. If there was time, he
should be glad to have every item of expenditure produced by the proper
officer, that they might know how to act. He was fully aware that, in the
Navy Department, it was more difficult to anticipate the expenses than in
any other. Though, therefore, he was no friend to a Navy, as it had not
been thought proper to abandon the establishment, he considered it right
to make such grants as were necessary for its support. If it was early
in the session, or if he thought it possible to get the information, he
should vote for calling for it. But as they were reduced to the necessity
of saying at once whether they would, or would not support the Navy, he
should be in favor of making this grant.
The yeas and nays having been taken on Mr. D. R. WILLIAMS’s motion,
were--yeas 25, nays 86.
Mr. D. R. WILLIAMS moved to recommit the bill to a Committee of the
Whole, with the view of obtaining information from the Secretary of the
Navy before it was definitively acted on.
The motion was disagreed to--ayes 41, noes 56; when the bill was ordered
to be engrossed for a third reading without a division.
The motion to read the bill a third time on Saturday was carried--ayes
55, when the following motion, made by Mr. D. R. WILLIAMS, was agreed to
without a division:
_Resolved_, That the Secretary of the Navy be directed to lay
before this House an estimate of the respective sums necessary
to be appropriated for repair of vessels, store rent, pay of
armorers, freight, and contingent expenses of the Navy for the
year 1806.
FRIDAY, April 11.
_Exclusion of Military and Naval Officers from Civil Employment._
The bill to prohibit officers of the Army and Navy of the United States
from holding or exercising any civil office, was read a third time.
Mr. GREGG said he never found himself involved in greater difficulty.
He was in favor of the principle involved in the bill, and yet he could
not vote for its passage. He believed that it was a correct principle
that civil and military offices should be kept distinct, and he wished
the constitution had prohibited the union. In relation to the individual
on whom it was mentioned yesterday this law was to operate, he was
satisfied it would be best if he could be removed from one of the offices
he held; and if such a course had been pursued, he should have been in
favor of destroying the office of brigadier-general to get rid of the
officer. The effect of this resolution would be to take from a man an
office which he held under the constitution. This power they did not
possess. The only constitutional way to effect the object was to destroy
the office. He would agree likewise to amend the constitution, so as to
declare the union of civil and military office incompatible, or to a
law providing that after a certain time no person should hold two such
offices; and he should, if practicable, be for doing away the office
of Governor of Louisiana, because he believed the person holding that
office was, by his course of proceedings, producing a disturbance in
the Territory. But although he entertained a favorable opinion of the
principle of the bill, and would wish to remove that gentleman from one
of the offices he held, yet he must vote against the bill, as it went to
the unconstitutional removal of an officer.
Mr. SMILIE thought the passage of this bill involved a principle of a
very serious nature. As to the abstract principle involved in the bill,
he did not dispute its correctness, or that it ought to have been a part
of the constitution. But the question was, whether they had a right by a
legislative act, to prejudice any other branch of the Government. They
were not in his opinion warranted in travelling out of their own sphere
to remove existing evils. There was but one way in which the constitution
provided for the removal of a public officer. It says “the President,
Vice President, and all civil officers of the United States, shall be
removed from office on impeachment for, and conviction of, treason,
bribery, or other high crimes and misdemeanors.” Here was the true and
only sphere in which the House could move. If the constitution did not
give the right of removal in any other way, it did not exist; and if
they undertook by a legislative act to remove a man constitutionally
appointed, who would pretend to say what mischief might not result from
it? For these reasons he should vote against the bill.
Mr. QUINCY said it appeared to him that one of the arguments urged by
gentlemen against this bill was fallacious--that which considered it
an invasion of the rights of the Executive. This argument went on the
assumption that the President would necessarily sign the bill sent to
him, which might or might not be the fact. If he accedes to it, the
argument of gentlemen falls to the ground; and if it shall be returned,
it will then be time enough to discuss the constitutional principle. With
regard to the general expediency of passing such a bill, the strongest
arguments would be found in favor of it on the page of history. If
history proved any thing, it was that the condition of those was most
degraded who lived under the colonial governments of Republics. This
was amply proved by the annals of the Carthaginian and Roman Republics.
The territory under contemplation was a kind of colonial government,
and might in the course of time be a powerful engine in the hands of
the Executive. He wished, therefore, for a separation of the civil and
military powers which might arise under it.
Mr. SMILIE said if the question was what was most convenient or
best, he should have no difficulty in agreeing with the gentleman
from Massachusetts. But it rested on higher ground--on what was
constitutional. If he had a right to make the constitution, he would have
no hesitation in separating the civil and military powers. But he could
not forget the occurrences which had taken place in the State he had the
honor to represent in part. In that State there had been but a single
branch of the Legislature without any Executive veto on the passage of
the laws. He had seen that Government destroyed by sweeping away the
Executive power before the irresistible authority of the Legislature,
and he had seen the people obliged, from this circumstance, to give up
that constitution and frame a new one. The measure under consideration
was of the same kind. The constitutional powers of the Executive ought
not to be encroached upon, unless the object was to produce confusion.
He had seen the effects of such measures, and deprecated them. You may,
said Mr. S., abolish the office, and the officer falls with it; but in
no other way, while the office continues, can you remove the officer
except by impeachment. Shall we, then, in order to get rid of a man who
may not have done right (and as for myself I am ready to answer I have
no affection for the man) go into a new scene, the length of which we
cannot foresee? This principle once established may lead to any thing;
it may lead to a destruction of the powers of the Executive altogether.
I am as tenacious of the powers of the Legislature as any man, but I
believe the powers of the Executive to be equally necessary. Indeed,
I think there is more danger to be apprehended from the overwhelming
power of the Legislature, than from the powers of the Executive. For
the Legislature is so powerful that there can be little danger of the
Executive encroaching upon it.
Mr. EPPES.--If I took the same view of the operation of this law with the
gentleman from Pennsylvania, I should certainly give it my negative. As,
however, I voted for the resolution on which it is founded, and consider
the law in conformity with the resolution, I will assign, in a few words,
the reasons which will govern my vote.
We have been told that all the departments of Government are independent
of each other. No man denies the correctness of this principle. Let us
not interfere with the constitutional rights of the other departments,
nor abandon our own. The Executive has by the constitution the right
of nominating for office any citizen of the United States, whether an
officer of the Army and Navy, or not. This being a constitutional
right, he certainly cannot be deprived of it by law; the right remains,
and may be exercised if the law passes; the law merely severs the civil
and military offices, and leaves the military officer to decide whether
he will vacate his military command by holding or accepting a civil
office; the Executive will have the same right to appoint--the individual
will have the same right to accept the civil office as heretofore, but
the acceptance vacates his command in the Army or Navy. If, then, the
Executive right to appoint, and the right of the officer to accept,
remains after the passage of this law, how can gentlemen contend that
the constitutional right of appointment is narrowed? All the difficulty
on the present occasion arises from the law being made to bear on the
constitutional right of appointment. It is intended to operate only on
offices in the Army or Navy which are created by law, to the tenure of
which we may annex such conditions as the public good may require. Under
the constitution we have a right to prescribe rules for the government of
the Army or Navy. In passing this law we add a new clause to the articles
of war, viz: That an officer of the Army or Navy shall not hold or accept
a civil office. Do gentlemen really suppose that we have no right to make
this rule? If we can say that an officer shall not get drunk, that he
shall have short hair, a coat of a certain form; that he shall not absent
himself from his duty; or if we can in fact annex any other condition
calculated to ensure to the public his services, why may we not declare
by law that he shall not hold or accept a civil office, he shall forfeit
his military command? The public welfare is the basis of the rules for
the government of the Army and Navy; we have a right to prescribe such
rules as the public good requires, and it is our duty to establish such
as will ensure to us the services of our military officers in that
station to which they are appointed.
But we are told we are about to remove from office a civil officer
by law. The gentleman from Pennsylvania has read the clause of
the constitution which provides for the removal of civil officers
by impeachment. This law is not to operate on civil but on
military officers; civil officers, it is true, are removed by
impeachment--military officers by such forms as we think proper to
prescribe by law; the operation of this law will be precisely the same
with any other new rule prescribed for the government of the Army or
Navy. Suppose we were to pass a law that any officer found drunk after
the 1st of July next shall forfeit his office--his having been drunk
before would not subject him to the penalty of the law--but his being
drunk after the first of July next would deprive him of his office. Apply
this to the case of a civil officer. An officer of the Army or Navy
having accepted a civil office, or holding a civil office, does not at
present vacate his military office; the reason is obvious--there is no
law against it. If, however, after the first of July next, he accepts
or continues to hold a civil office, he forfeits his military command
under the new article of war which this law establishes. The law severs
the two offices, declares them incompatible with each other, and leaves
the individual free to make his election. As to the general principle
that the civil and military ought to be separate and distinct, I have no
doubt. If the principle is correct, the law ought to extend to all cases,
not only such as may hereafter arise, but to those which at present exist.
Mr. STANFORD supported, and Messrs. FINDLAY and SLOAN opposed the bill;
when the question was taken by yeas and nays on the passage of the
bill--yeas 64, nays 34, as follows:
YEAS.--Willis Alston, Isaac Anderson, Burwell Bassett, George
M. Bedinger, Silas Betton, John Blake, jr., Thomas Blount,
William Butler, Levi Casey, John Claiborne, Christopher
Clark, Joseph Clay, Matthew Clay, John Dawson, Elias Earle,
Peter Early, James Elliot, Caleb Ellis, William Ely, John W.
Eppes, James M. Garnett, Peterson Goodwyn, Edwin Gray, Seth
Hastings, David Holmes, John G. Jackson, Walter Jones, Michael
Leib, Matthew Lyon, Duncan McFarland, Robert Marion, Josiah
Masters, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John
Morrow, Gurdon S. Mumford, Thomas Newton, jr., Gideon Olin,
Josiah Quincy, John Randolph, Thomas M. Randolph, John Rea of
Pennsylvania, Jacob Richards, Thomas Sammons, Thomas Sanford,
Martin G. Schuneman, John Cotton Smith, John Smith, Samuel
Smith, Thomas Spalding, Richard Stanford, Lewis B. Sturges,
Samuel Taggart, Benjamin Tallmadge, Philip R. Thompson, Thomas
W. Thompson, Uri Tracy, Abram Trigg, Robert Whitehill, David R.
Williams, Alexander Wilson, Richard Wynn, and Joseph Winston.
NAYS.--David Bard, Joseph Barker, Barnabas Bidwell, John
Chandler, Jacob Crowninshield, Richard Cutts, Ezra Darby,
Ebenezer Elmer, William Findlay, John Fowler, Andrew Gregg,
Isaiah L. Green, James Kelly, William McCreery, Jeremiah
Nelson, Timothy Pitkin, jr., John Pugh, John Rea of Tennessee,
John Russell, Peter Sailly, Ebenezer Seaver, James Sloan, John
Smilie, Henry Southard, Joseph Stanton, David Thomas, Philip
Van Cortlandt, Killian K. Van Rensselaer, Joseph B. Varnum,
Peleg Wadsworth, John Whitehill, Eliphalet Wickes, Marmaduke
Williams, and Nathan Williams.
SATURDAY, April 12.
_Naval Appropriations._
The bill making appropriations for the support of the Navy was read the
third time.
Mr. J. C. SMITH moved to recommit it, for the purpose of restoring the
provision for completing the marine barracks at the city of Washington,
the amount of expense attending which, he understood, had been already
partly expended.
The motion to recommit the bill having obtained--yeas 54--the House went
into a Committee of the Whole, Mr. J. C. SMITH in the Chair.
Mr. J. CLAY observed, that since the House had agreed to strike out the
provision for completing the barracks, he had understood that more money
had been applied to this purpose than had been appropriated, and that
it had been drawn from the private funds of one of the officers, under
an understanding with the Head of the Department. He, therefore, moved
to restore the item “for completing the marine barracks at the city of
Washington, three thousand five hundred dollars.”
Mr. D. R. WILLIAMS said he should not make any objection to this motion.
He would only call the attention of the House to the regard they had
heretofore manifested to specific appropriations, under the hope that
something would be done to circumscribe contingencies. He believed that
this particular sum had been expended much to the interest of the country.
Mr. LEIB said, he was not very fond of making appropriations in this
way--for particular officers to run into unauthorized expenditures,
and then to call on Congress to make good the deficiency. Is this a
provision for completing the house for the commandant? Is that the marine
barracks? If not, then under what appropriation is it made? Is it under
that of contingencies? Look at the buildings at the navy yard; is all
this expense incurred out of the contingent fund? If it is not, it is not
authorized by law. Mr. L. said, he did not know that he should make any
objection to this item; but he thought it full time to check this loose
mode of procedure.
The question was then put, and the motion of Mr. J. CLAY was agreed to
without a division.
Mr. D. R. WILLIAMS said, he wished so to modify that part of the bill
which appropriated four hundred and eleven thousand nine hundred and
fifty dollars “for repair of vessels, store rent, pay of armorers,
freight, and other contingent expenses,” as to separate the items; to
give the Department all it asked, but fix a particular sum to each item.
Mr. CONRAD opposed the motion, and remarked that the expenditure under
one item might fall short of the sum appropriated, which would require
that the deficiency should be made up from the surplus of another.
Mr. DANA said this amendment was warranted by the former usage of the
House, and the message of the President of the United States. At the
first session of the seventh Congress the President had observed that--
“In our care, too, of the public contributions intrusted to our
direction, it would be prudent to multiply barriers against
their dissipation, by appropriating specific sums to every
specific purpose susceptible of definition; by disallowing
all applications of money, varying from the appropriation
in object, or transcending it in amount; by reducing the
undefined field of contingencies, and thereby circumscribing
discretionary powers over money.”
This opinion had been given five years ago; and they might now infer that
it had been found that it could not be carried into effect, as to the
military or naval service. Mr. D. said he considered the gentleman from
South Carolina as bringing up this question directly before the House:
Will you adhere to specific appropriations, or will you abandon them? Mr.
D. said he had never been in favor of them in relation to the Navy or
Army.
The question was then taken on the motion of Mr. D. R. WILLIAMS, which
was disagreed to--yeas 32, nays 51--when the committee rose, and reported
the bill, which was passed without a division.
MONDAY, April 14.
_Duty on Salt._
Mr. J. RANDOLPH said he was about to call the attention of the House to a
subject which he should not have probably brought into view, but for the
change wrought in the state of the revenue, in consequence of the peace
with Tripoli. Among the different articles from which moneys were drawn,
there was none so heavily burdened as salt; and it would be recollected
that it was one of the necessaries of life, and an article, the free use
and consumption of which was of material importance to the agriculture
of the country. Two acts had been passed laying a duty on this article.
It was no new thing to wish--it was, indeed, extremely desirable to
diminish, if not to take off this duty, and for that purpose he submitted
the following resolution:
_Resolved_, That the Committee of Ways and Means be instructed
to inquire into the expediency of repealing so much of any act
as lays a duty on salt; and to report such provision as may, in
their opinion, be calculated to meet the deficiency occasioned
by that repeal.
Mr. THOMAS said the Committee of Ways and Means, of which the gentleman
from Virginia, (Mr. J. RANDOLPH,) who has made the motion, was and still
is Chairman, were instructed by this House in the early part of last
session, on a motion which he had the honor then to submit, to inquire
into the expediency of reducing the duty on salt, and, if he recollected
right, they were directed to report by bill, or otherwise; but, from some
cause or other, to him unknown, that committee had never yet made any
report on that subject. Courtesy might induce him to impute this neglect
to the multiplicity of business put into the hands of the members of that
committee.
He, Mr. T., always considered the duty on this article too high, and
falling particularly heavy on the agricultural part of the community.
It was now, and always had been his wish, to reduce it as soon as our
revenue would permit, if consistent with the provisions made for paying
off our national debt, and meeting the other exigencies of Government.
For his part, he was at a loss, however, to discover that the present
situation of our revenue, and the calls on Government for expenditure,
together with the present aspect of our foreign relations, warranted
this measure more now than last year. It was true that the war with
the Barbary Powers up the Mediterranean had ceased, but it was also
true, that the two and a half per cent. additional duty on goods paying
_ad valorem_ duties has likewise ceased with the peace concluded with
Tripoli. This duty was laid for the support of, and was more than
adequate to the expense of that war.
Mr. J. RANDOLPH said he certainly did not deny the existence of such
a resolution. He had only observed that he did not recollect having
received it from the Clerk.
The Clerk read the resolution offered last session by Mr. THOMAS, on
the 7th of December, 1804, which was such as he had stated, and which
appeared to have received the sanction of the House.
Mr. ALSTON then moved that the resolution should be referred to a
Committee of the Whole, which, after a few words in opposition by Mr.
LEIB, was disagreed to--yeas 22; when the original motion obtained
without a division.
WEDNESDAY, April 16.
_Duties on Salt._
The House resolved itself into a Committee of the Whole, on the bill
repealing the acts laying duties on salt, and continuing in force for a
certain time the first section of the act, entitled “An act further to
protect the commerce and seamen of the United States against the Barbary
Powers,” as follows:
SEC. 1. _Be it enacted, &c._, That from and after the ---- day
of ---- next, so much of any act, or acts, as lays a duty on
imported salt, be, and the same hereby is, repealed, and from
and after the day aforesaid, salt shall be imported into the
United States free of duty.
SEC. 2. _And be it further enacted_, That, from and after the
first day of January next, so much of any act, or acts, as
allows a bounty on exported salt provisions, and pickled fish,
in lieu of drawback of the duties on the salt employed in
curing the same, and so much of any act, or acts, as makes an
allowance to the owners and crews of fishing vessels, in lieu
of drawback of the duties paid on the salt used by the same,
shall be, and the same hereby is, repealed.[40]
SEC. 3. _And be it further enacted_, That so much of the act,
passed on the 25th day of March, 1804, entitled An act further
to protect the commerce and seamen of the United States against
the Barbary Powers, as is contained in the first section of the
said act, be, and the same hereby is, continued in force until
the end of the next session of Congress, and no longer.
Mr. QUINCY moved so to amend the first section as to repeal the act
laying a duty on salt, additional to that originally imposed, so as
to take off at present the duty of eight cents a bushel. He said he
was of the opinion that taking off the whole duty on salt would have
an injurious effect. A difference of twenty cents on the bushel would
operate very seriously on those who had already made shipments. It was
part of the duty of a legislator to avoid making such sudden changes as
tended to destroy the confidence of the mercantile world in the stability
of the laws. Whenever changes were made, they ought, in his opinion, to
be gradual. Although he considered the general effect of this measure
most important, yet, by too sudden an operation, it might affect a
respectable class of individuals very injuriously. He would state the
effect which he apprehended it would have. Suppose the repeal should
take effect on the first day of July. A cargo of salt generally averages
about four thousand bushels; the prime cost at Liverpool was about eleven
cents a bushel. The cost of the cargo would, therefore, be only $440;
the duty would amount to $800; the freight, &c., to about $1,000; making
an aggregate of $2,240, which would be the cost in this country, on a
mercantile calculation, supposing the present duties to remain in force.
The present price of salt in this country was about fifty-three cents a
bushel, which would produce something less than $2,240. The reason of
the sum for which it is sold being less than that it costs is, that salt
is merely made use of, in most cases, as a return cargo. Taking off the
duty of twenty cents, would reduce the price to thirty-three cents a
bushel, which would detract $920 from the value of the cargo, and would
be more than double the prime cost of the salt. To so great a reduction,
so suddenly made, Mr. QUINCY said he objected. He had, he said, another
reason for being against the section as it stood. The duty on salt was
among the duties pledged for the payment of the national debt. At the
time this pledge was made, the duty was twelve cents. The additional
duty of eight cents was afterwards imposed. His object was, to reduce
the existing duty eight cents, and to let the original duty of twelve
cents stand, at least, until some notice had been given to the mercantile
world. He believed that a reduction of the duty was highly desirable, and
would be very popular. He might not, perhaps, object to an entire repeal
if time were allowed him to consult his constituents, some of whom might
possibly be ruined by it. All things considered, he thought it would be
best to reduce the duty at present eight cents. This would leave Congress
at liberty, at their next session, to take the entire repeal into
consideration, which might be done in case they considered it eligible.
Mr. J. RANDOLPH said he should prefer the taking off eight cents, rather
than suffering the duty to remain as it stood at present; but he hoped
the whole duty would be taken off. One of the objections of the gentleman
to taking off the whole duty was, that the merchants who have imported
salt may be injured by it, and will not be able to compete with those who
have imported it duty free. But this argument operated two ways. Did it
not apply differently when the duty on salt was first laid? At that time,
the very man who now loses, gained in a correspondent ratio. To his mind,
Mr. R. said, it was the strangest reason on earth, if this nation were
in a situation to give up all its taxes, that it should be said by any
gentleman, don’t repeal the laws imposing them, because my constituents,
the merchants, have paid duties on some of them. If so, your taxes, so
far from being diminished, may go on increasing _ad infinitum_. But, the
truth is, we have the same right now to take off the duty on salt as our
predecessors had to lay it on.
But it seems that the original duty of twelve cents was put into pledge
for the payment of the national debt. We were told the same thing
five years ago when we proposed to repeal the internal taxes. They
were, however, repealed without any violation of the public faith, and
wherefore? The nation has contracted a debt to the public creditor, and
so long as the Government finds funds wherewith to pay it, the public
creditor has no right to ask whether we take it from our coat or breeches
pocket? whether from a land tax, an excise, or from duties on imported
articles? The pledge on our side is, to find money. If, after the repeal
of this duty, the ways and means for the payment of this debt are found
deficient, I agree that we are bound to make good the deficiency. But
what do we propose? The amount of the duty on salt is less than $600,000,
and at the same time that we take this off, we impose a duty which will
produce a million. We take off a duty on a necessary of life, which falls
peculiarly heavy on the poor, and on agriculture, and lay an _ad valorem_
duty on gauze, catgut, and the Lord knows what, which produces from three
to five thousand dollars more.
Mr. QUINCY asked whether a duty which produced $850,000 a year, which
was limited to the end of the next session, and which was not pledged to
the payment of the national debt, could be considered as equivalent to
a permanent duty of half a million, imposed by an act which could not
be repealed until the debt was paid? He did not think the new tax was a
substitute of equal value, and he considered it one of the objects of
this bill to get rid of the pledge to pay the debt.
Mr. J. CLAY felt disposed to give every credit to gentlemen in their
professions of regard towards the public debt. The answer to the
objection was this: A certain fund, arising from the impost, was
pledged to the payment and interest of the debt. An act had passed the
last Congress increasing the fund appropriated for this purpose, from
$7,200,000 to $8,000,000. If the duty on salt was not a component part
of this sum, the objection of gentlemen was futile. Now it was a fact,
that, so much as this sum was diminished by taking off the $520,000
arising from the duty on salt, so much was it increased by the other duty
proposed to be laid by this act. So long as the taxes pledged exceeded
eight millions, the Government sacredly regard their engagements. As
an answer to all the sensibility displayed by gentlemen for the public
faith, permit me, said Mr. C., to refer them to a resolution proposed
in the seventh Congress, on the 25th of January, 1802, instructing the
Committee of Ways and Means to inquire into the expediency of taking
off, or reducing, the duty on brown sugar, coffee, and bohea tea.
Another objection urged by gentlemen is, the effect of this bill on the
merchants. There is no doubt that, in consequence of it, the price of
salt will fall; but, would not this have been the effect on bohea tea,
had their measure been successful? The effect, however, will be gradual,
and there will be but little loss sustained by any one individual, as the
price will begin to fall immediately on taking off the duty. I believe
it is not a material error to say, that the traffic is pretty much in
the hands of those men who enjoyed it when the duty was laid; and if so,
those who now lose, will only lose as much as they before gained. I hope
the blank in the bill will be so filled as to give six months notice of
the imposition of the duty.
Mr. DANA said, that if gentlemen were disposed to diminish the revenue,
to screw up the Government, and if they were satisfied the Administration
could get along without this tax, it would weigh much in his mind in
favor of repeal; and, as they were disposed to grapple with difficulties
and gain popularity, he believed he would gratify them by voting for the
bill.
Mr. QUINCY said he opposed such an excessive reduction of this duty
at once, not only on the grounds he had stated, but on other grounds.
In Massachusetts, in the neighborhood of Boston, very extensive
manufactories of salt had been established, under the idea that the duty
would be continued. The immediate effect of this measure might be to
destroy and ruin them.
Mr. QUINCY’s motion to amend the section was likewise disagreed to
without a division.
On motion of Mr. J. RANDOLPH, the blank, relative to the time when the
duty was to take effect, was filled with the first day of October.
The third section was then read, which continued the Mediterranean fund
till the next session of Congress.
Mr. ALSTON observed that, from the present appearance of things, he did
not think it advisable that this section should remain as it was, as
in six or eight months they would have again the same ground to travel
over. His object was permanently to substitute the Mediterranean fund for
the salt tax. He had no objection to make the exchange; to take off the
perpetual tax on salt, and lay it on these articles. He thought there was
no danger in trusting to the wisdom of Congress the discontinuance of the
act imposing them; and that as long as there was a necessity for taxes,
these subjects of taxation were as unexceptionable as any that could be
laid. When they were about to strike so deeply at the revenue, they ought
to be certain that the substitute offered would justify the measure.
For these reasons he submitted a motion to make the Mediterranean fund
perpetual. He thought this expedient, as the tax on salt was perpetual,
and the substituted tax was not so certain as that on salt. With regard
to the one, very little variation could take place; while the other might
materially change with the times.
Mr. CROWNINSHIELD then moved to amend the last section, so as to continue
the Mediterranean fund for three years.
Mr. J. RANDOLPH hoped the amendment would not be agreed to. It would
be remembered that the right of giving the public money was the sole
exclusive right of that branch of the Legislature; and that when they
made grants for a long term of years, it would not depend on them alone
whether they should be revoked. In his opinion, if the Constitution of
the United States was practised on its true principles, that House ought
not to give the public money out of its control. There was no existing
cause for continuing this fund for three years, or for a longer period
than that contemplated by the bill.
The question was then taken on Mr. CROWNINSHIELD’s motion, which was
disagreed to--ayes 28. When the question was taken on engrossing the
bill, which was carried--ayes 83.
THURSDAY, April 17.
_Duties on Salt._
The bill repealing the acts laying duties on salt, and continuing in
force, for a further time, the first section of the act, entitled “An act
further to protect the commerce and seamen of the United States against
the Barbary Powers,” was read a third time.
Mr. MASTERS moved to recommit the bill, for the purpose of modifying its
details.
Mr. QUINCY supported the motion; which was lost--ayes 37, nays 49.
When the yeas and nays were taken on the passage of the bill--yeas 43,
nays 11, as follows:
YEAS.--Evan Alexander, Willis Alston, jun., Isaac Anderson,
Burwell Bassett, George M. Bedinger, John Blake, junior,
Thomas Blount, Robert Brown, Levi Casey, John Chandler, John
Claiborne, Christopher Clark, Joseph Clay, Matthew Clay, John
Clopton, Jacob Crowninshield, Richard Cutts, Samuel W. Dana,
Ezra Darby, John Davenport, junior, John Dawson, Elias Earle,
Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, William
Ely, John W. Eppes, James Fisk, James M. Garnett, Charles
Goldsborough, Peterson Goodwyn, Edwin Gray, Andrew Gregg, Silas
Halsey, John Hamilton, David Holmes, David Hough, John G.
Jackson, John Lambert, Joseph Lewis, junior, Patrick Magruder,
Robert Marion, Thomas Moore, Jeremiah Morrow, John Morrow,
Jonathan O. Mosely, Jeremiah Nelson, Roger Nelson, Thomas
Newton, junior, Gideon Olin, Timothy Pitkin, junior, John Pugh,
Josiah Quincy, John Randolph, Thomas M. Randolph, John Rea of
Pennsylvania, Jacob Richards, Thomas Sammons, Thomas Sanford,
Martin G. Schuneman, James Sloan, John Smilie, John Smith,
Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton,
Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, David
Thomas, Philip R. Thompson, Thomas W. Thompson, Abram Trigg,
Killian K. Van Rensselaer, Joseph B. Varnum, Peleg Wadsworth,
Robert Whitehill, David R. Williams, Marmaduke Williams,
Alexander Wilson, Richard Wynn, and Joseph Winston.
NAYS.--Joseph Barker, John Fowler, Isaiah L. Green, Michael
Leib, Matthew Lyon, Josiah Masters, William McCreery, Nicholas
R. Moore, John Russell, Peter Sailly, and Uri Tracy.
FRIDAY, April 18.
_William Eaton._
The House resolved itself into a Committee of the Whole, on the bill
authorizing the settlement of accounts between the United States and
William Eaton. No amendment having been made to the bill, the House
proceeded to consider the said bill at the Clerk’s table, and the same
being again read, in the words following, to wit:
_Be it enacted by the Senate and House of Representatives of
the United States in Congress assembled_, That the proper
accounting officers be, and they hereby are, authorized and
directed to liquidate and settle the accounts subsisting
between the United States and William Eaton, late Consul at
Tunis, upon just and equitable principles, under the direction
of the Secretary of State.
A motion was made by Mr. JOHN RANDOLPH, and the question being put, to
amend the said bill, by striking out, at the end thereof, the words
“under the direction of the Secretary of State;” it passed in the
negative--yeas 43, nays 48.
_Ordered_, That the said bill be engrossed, and read the third time on
Monday next.
MONDAY, April 21.
_Duties on Salt._
The House took up the amendments of the Senate to the bill repealing the
acts laying duties on salt, and continuing in force for a further time,
the first section of the act, entitled “An act further to protect the
commerce and seamen of the United States against the Barbary Powers.”
These amendments proposed striking out all the provisions of the bill
relative to the repeal of the duty on salt.
Mr. J. RANDOLPH.--I understand this House to have sent a bill to the
Senate repealing the existing duty on salt, and continuing for a further
time the tax imposing a duty of two and a half per cent. on articles
previously charged with ad valorem duties. The Senate have returned the
bill, retaining the supply we voted, as well as the tax proposed by
us to be repealed. I hope we shall not agree to their amendments, and
the reasons I shall offer will not be those drawn from expediency, but
from my idea of the constitutional powers of this, and the other branch
of the legislature--which is, that it is the sole and indisputable
prerogative of this House to grant the money of the people of the United
States. It is here only that a grant of money can originate. It is true
that the Senate have the power of amending money bills, but my idea of
the extent to which that power can go, according to the true spirit of
the constitution, is this: while the Senate may amend money bills to
facilitate the collection of duties, or in other respects, as to their
details, they do not possess the constitutional power of varying either
the quantum of tax proposed in this House, or the object on which it
may be levied. I hope the House will never consent to give up this
invaluable privilege of saying what supplies they will grant, and the
object on which they shall be levied. But, even supposing this objection
nugatory, I hope this House will not suffer itself to be trapped, on
the last day of the session, in agreeing to a grant it was never in
their contemplation to make. When we sent a bill to the other branch to
continue the Mediterranean duty, we sent at the same time, a bill to
repeal the duty on salt. The amendment from the Senate can be viewed in
no other light than as originating a money bill in the Senate. It goes to
originate a tax on salt. Such, in effect, will be the object and tendency
of the measure. Let us suppose, instead of sending to the Senate a bill
imposing a new tax, we had sent a simple bill to repeal this same tax
upon salt--could the Senate, by an amendment, rivet and continue the
Mediterranean fund? And if they could, would not that be originating
a money bill? I hope the House will disagree to the amendments of the
Senate.
Mr. ALSTON thought it would be advisable to accommodate with the Senate.
In order to obtain an accommodation, he should vote, in the first
instance, against the amendments of the Senate. On a conference, they may
agree to strike off the duty of eight cents on salt, and the next year,
when we shall better understand the ground on which we stand, the House
may be disposed still further to lessen the burden.
Mr. RHEA, of Tennessee.--I do not consider this bill as in the nature of
a bill originating revenue, but as one, on the contrary, detracting from
the revenue. I contend that the Senate have the power, at any time, to
say they will not consent to the repeal of a revenue law, else they are
a trifling, insignificant body. Are they not, as well as we, to judge
of the exigency of the country? This is not a question of expediency,
but of necessity. Though we are desirous of taking off the duty on salt,
such is the situation of the country, menaced with foreign danger, and
particularly with a war with Tunis, that the revenue ought not to be
diminished. For these reasons I shall concur in the amendment of the
Senate.
The yeas and nays were then taken on agreeing to the amendment of the
Senate--yeas 24, nays 56.
Mr. J. RANDOLPH.--I hope we shall now adhere to our disagreement to the
amendment of the Senate. I hope we shall not concur with the Senate,
under the idea of reducing the duty on salt from twenty to twelve cents.
Notwithstanding a fear entertained by some gentlemen of a deficiency in
the revenue, the House, by a vast majority, passed the bill repealing the
duty on salt. The Message of the President was referred to the Committee
of Ways and Means, and that committee made a report recommending the
taking off the duty on salt, and continuing the two and a half per cent.
duty. Every objection to the measure that now exists then existed, and
ought then to have been offered. We then sent to the other House a supply
of money--a tax yielding $900,000, with the probability of its amounting
the ensuing year to a million; in this same bill we proposed taking
off a tax, which does not yield $600,000; we therefore made a grant of
$400,000 annually. It is said that the amendment of the Senate does not
go to the imposition of a new tax, but that it continues the revenue as
it is. There is some plausibility, but no solidity in this remark. If
it goes to continue the revenue as it now is, where is the necessity of
continuing the duty of two and a half per cent.? It is therefore in fact
a new money bill. Let me urge one thing to the House. If we ever mean to
strike off the duty on salt, we must cling to the Mediterranean fund as
the lever to lift this load from the shoulders of the people. It will be
recollected that within five years we have taken off the internal taxes.
I am glad of it; for I fear it would not now be done. They produced
about $800,000, inclusive of the taxes which have expired, and $640,000
exclusive of them. But we have granted a supply of two and a half per
cent. duties, which yield, annually, from nine hundred thousand, to a
million dollars. This is a complete offset to the repeal of the internal
taxes. What we have lost by their repeal we have gained, with the
addition of one or two hundred thousand dollars beyond the sum we should
have received, had they been suffered to remain, and no addition been
made to the duties on imports and tonnage; and yet we hear of the growing
demands of the Government. But the growing demands of all Governments
are alike. Do gentlemen recollect the growing state of the nation? When
this Government was first put in motion, the duties on imports were not
more than four or five millions. These resources are daily growing, and a
fund accruing from the increasing prosperity of the people, which their
guardians are bound to account for. Though we have contracted a debt for
New Orleans, we have gained a revenue of not less than $300,000 a year.
From these circumstances I hope we shall adhere to our disagreement to
the amendments of the Senate, and that they will, in their justness and
graciousness, yield a tax of half a million for a tax which produces a
whole million.
It is said the Senate may strike out all but the title of your bills.
Indisputably; but will this House submit? Suppose you send a bill to
the Senate laying a duty of two per cent. on saltpetre, and they send
it back to you, striking out this provision, and giving you a bill in
lieu of it, laying a tax of four shillings in the pound on all the lands
of the United States. Is that, under the constitution, a fair exercise
of their power? To my mind, if the position be admitted, that it is the
sole privilege of this House to grant the public money, it is extremely
indecent, to say no more, for that branch of the Legislature to tell the
United States they will get all the money they can, whatever may be the
disposition of this House. Recollect how the salt tax was laid before--on
the last day of an expiring Congress, after a proposition to lay the tax
had been rejected, and members had gone home, under the persuasion that
no such attempt would be renewed. By some little modification of that
proposition, a tax of twenty cents was laid on every fifty-six pounds of
salt, and riveted on the people for ever. When I say for ever, I mean the
period of its being taken off depends on a branch of the Legislature over
which the people have but little control, who are the representatives,
not of the people, but of the State sovereignties. Now, if the House do
wish, as surely they must, to get rid of this tax, and if they believe,
as they must, that the present circumstances of the country admit of
its repeal, else the bill would not have passed by so large a majority,
I hope they will adhere to their disagreement to the amendments of the
Senate, and put it in the power of the other branch to take so much of
the public money as it is our pleasure to grant, and not one cent more.
Mr. CONRAD.--I hope we shall not adhere, but try a conference. It will
then be time enough to consider whether we will adhere. Anxious as I am
to get rid of this odious tax, I will agree to reduce the duty to twelve
cents, or keep the Mediterranean fund, and next session judge whether we
are able to take off the whole of it.
The motion to adhere was then disagreed to--yeas 36, nays 42. When the
House agreed to insist on their disagreement to the amendment of the
Senate, and appointed a committee of conference.
And then, on a motion, made and seconded, the House adjourned until half
past six o’clock, post meridian.
_Eodem Die, half-past 6 o’clock._
_Salt Duty._
CONFERENCE.
Mr. GREGG, from the committee of conference on the same bill, observed
that the conferees on the part of the Senate did not discover any
disposition to recede from their amendments. The conferees on the part of
the House stated the danger of losing the bill if the conferees did not
relax, and proposed to meet them on the ground of compromise, by taking
off the duty of eight cents imposed on salt. To this proposition the
conferees on the part of the Senate declined acceding.
Mr. J. RANDOLPH moved that the House adhere to their disagreement to the
amendments of the Senate.
Mr. ALSTON.--Having done every thing in our power to repeal the duty on
salt or to lessen it, the only question is, whether we shall continue the
Mediterranean fund until the next session or not. I call on gentlemen to
take a review of the different estimates from the Treasury during the
present session, and to consider the expenses they warrant--I allude
particularly to the appropriation of two millions towards the purchase of
the Floridas, to decide whether we can do without the Mediterranean fund.
The great object with me in advocating the repeal of the duty on salt was
to obtain the Mediterranean fund. We have done our part to effect this
object. I believe with the aid of that fund, though the duty on salt had
been taken off, our revenue would have been sufficient; though even the
greatest economy would have been requisite in the disbursement of the
public money.
Mr. J. RANDOLPH.--I hope we shall adhere to our vote, and I will give
my reasons for indulging this hope. I do not profess to be so well
acquainted with the subjects of finance as some other gentlemen on
this floor. But if the Mediterranean fund is to be continued for so
short a time, it is obvious that the revenue to be gleaned from it will
be proportionally small. The arguments of gentlemen therefore rebut
themselves. They declare that they want a revenue, while they acknowledge
that the continuance of this tax will produce but a small one. I hope
that we shall keep the Mediterranean fund as a hostage for the salt
tax. If between this and the next session a deficiency shall occur in
our ways and means, to meet the demands of the Government, it will not
be the first time, as I know it will not be the last, in which I shall
step forward to vote a supply to meet every honorable demand. If there
shall be deficit, as there is no reason to believe there will be, I
pledge myself as one of those who will meet it. I wish to adhere to our
vote, that the Mediterranean fund may be lost; for we have been told by
those who, I presume, are well acquainted on such points, that such a
course will enforce economy, and I wish I could add, in the words of an
honorable friend who has no longer a seat here, would ensure economy.
The question was then taken by yeas and nays on adhering--yeas 40, nays
47.
The House then agreed to recede from their disagreement to the amendment
of the Senate--ayes 45, noes 36.
_Hamet Caramalli._
The House resolved itself into a Committee of the Whole on the bill sent
from the Senate, entitled “An act for the temporary relief of Hamet
Caramalli.” The bill was reported without amendment, read the third time,
and passed--yeas 71, nays 6.
_Adjournment._
Mr. EARLY, from the committee appointed on the part of this House,
jointly, with the committee appointed on the part of the Senate, to wait
on the President of the United States, and notify him of the proposed
recess of Congress, reported that the committee had performed that
service; and that the President signified to them he had no farther
communication to make during the present session.
A message from the Senate informed the House that the Senate, having
finished the legislative business before them, are now ready to adjourn.
_Ordered_, That a message be sent to the Senate to inform them that
this House, having completed the business before them, are now about to
adjourn until the first Monday in December next; and that the Clerk of
this House do go with the said message.
The Clerk accordingly went with the said message; and, being returned,
Mr. Speaker adjourned the House until the first Monday in December next.
NINTH CONGRESS.--SECOND SESSION.
BEGUN AT THE CITY OF WASHINGTON, DECEMBER 1, 1806.
PROCEEDINGS IN THE SENATE.
MONDAY, December 1, 1806.
The second session of the Ninth Congress, conformably to the Constitution
of the United States, commenced this day, at the city of Washington, and
the Senate assembled, in their Chamber.
PRESENT:
GEORGE CLINTON, Vice President of the United States, and President of the
Senate.
WILLIAM PLUMER and NICHOLAS GILMAN, from New Hampshire.
JOHN QUINCY ADAMS and TIMOTHY PICKERING, from Massachusetts.
URIAH TRACY, from Connecticut.
BENJAMIN HOWLAND, from Rhode Island.
STEPHEN R. BRADLEY and ISRAEL SMITH, from Vermont.
SAMUEL L. MITCHILL, from New York.
JOHN CONDIT and AARON KITCHEL, from New Jersey.
GEORGE LOGAN and SAMUEL MACLAY, from Pennsylvania.
SAMUEL WHITE, from Delaware.
DAVID STONE, from North Carolina.
JOHN GAILLARD, from South Carolina.
ABRAHAM BALDWIN, from Georgia.
THOMAS WORTHINGTON, from Ohio.
WILLIAM B. GILES, appointed a Senator by the Legislature of the
Commonwealth of Virginia, for the term of six years, from and after the
4th day of March last, produced his credentials, which were read; and,
the oath prescribed by law having been administered to him, he took his
seat in the Senate.
A message from the House of Representatives informed the Senate that a
quorum of the House is assembled, and are ready to proceed to business.
_Ordered_, That the Secretary notify the House of Representatives that a
quorum of the Senate is assembled, and ready to proceed to business.
A message from the House of Representatives informed the Senate that
the House have appointed a joint committee, on their part, with such
committee as the Senate may appoint, to wait on the President of the
United States, and notify him that a quorum of the two Houses is
assembled, and ready to receive any communication that he may be pleased
to make to them.
The Senate took into consideration the resolution of the House of
Representatives last mentioned, for the appointment of a joint committee,
and
_Resolved_, That they do concur therein; and
_Ordered_, That Messrs. MITCHILL and STONE be the committee on the part
of the Senate.
Mr. MITCHILL reported, from the joint committee, that they had waited
on the President of the United States, agreeably to the resolution of
this day, and that the President of the United States had informed the
committee that he would make a communication to the two Houses to-morrow,
at twelve o’clock.
TUESDAY, December 2.
SAMUEL SMITH, from the State of Maryland, and BUCKNER THRUSTON, from the
State of Kentucky, attended.
_Resolved_, That JAMES MATHERS, Sergeant-at-Arms and Doorkeeper to
the Senate, be, and he is hereby authorized to employ one assistant
and two horses, for the purpose of performing such services as are
usually required by the Doorkeeper to the Senate; and that the sum of
twenty-eight dollars be allowed him weekly for that purpose, to commence
with, and remain during the session, and for twenty days after.
_Annual Message._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
It would have given me, fellow-citizens, great satisfaction to
announce, in the moment of your meeting, that the difficulties
in our foreign relations, existing at the time of your last
separation, had been amicably and justly terminated. I lost no
time in taking those measures which were most likely to bring
them to such a termination, by special missions, charged with
such powers and instructions as, in the event of failure, could
leave no imputation on either our moderation or forbearance.
The delays which have since taken place in our negotiations
with the British Government appear to have proceeded from
causes which do not forbid the expectation that, during the
course of the session, I may be enabled to lay before you
their final issue. What will be that of the negotiations
for settling our differences with Spain, nothing which had
taken place at the date of the last despatches enables us to
pronounce. On the western side of the Mississippi she advanced
in considerable force, and took post at the settlement of Bayou
Pierre, on the Red river. This village was originally settled
by France, was held by her as long as she held Louisiana, and
was delivered to Spain only as a part of Louisiana. Being
small, insulated, and distant, it was not observed, at the
moment of redelivery to France and the United States, that she
continued a guard of half a dozen men, which had been stationed
there. A proposition, however, having been lately made by our
Commander-in-chief, to assume the Sabine river as a temporary
line of separation between the troops of the two nations until
the issue of our negotiations shall be known, this has been
referred by the Spanish commandant to his superior, and in
the mean time he has withdrawn his force to the western side
of the Sabine river. The correspondence on this subject, now
communicated, will exhibit more particularly the present state
of things in that quarter.
Having received information that, in another part of the United
States, a great number of private individuals were combining
together, arming and organizing themselves contrary to law,
to carry on a military expedition against the territories of
Spain, I thought it necessary, by proclamation, as well as by
special orders, to take measures for preventing and suppressing
this enterprise, for seizing the vessels, arms, and other means
provided for it, and for arresting and bringing to justice its
authors and abettors. It was due to that good faith which ought
ever to be the rule of action in public as well as in private
transactions, it was due to good order and regular government
that, while the public force was acting strictly on the
defensive, and merely to protect our citizens from aggression,
the criminal attempts of private individuals to decide, for
their country, the question of peace or war, by commencing
active and unauthorized hostilities, should be promptly and
efficaciously suppressed.
In a country whose constitution is derived from the will
of the people, directly expressed by their free suffrages,
where the principal Executive functionaries, and those of the
Legislature, are renewed by them at short periods; where,
under the character of jurors, they exercise in person the
greatest portion of the judiciary powers; where the laws are
consequently so formed and administered as to bear with equal
weight and favor on all, restraining no man in the pursuits of
honest industry, and securing to every one the property which
that acquires, it would not be supposed that any safeguards
could be needed against insurrection, or enterprise, on the
public peace or authority. The laws, however, aware that these
should not be trusted to moral restraints only, have wisely
provided punishment for these crimes when committed. But
would it not be salutary to give also the means of preventing
their commission? Where an enterprise is meditated by private
individuals against a foreign nation in amity with the United
States, powers of prevention, to a certain extent, are given
by the laws; would they not be as reasonable and useful where
the enterprise preparing is against the United States? While
adverting to this branch of law it is proper to observe, that,
in enterprises meditated against foreign nations, the ordinary
process of binding to the observance of the peace and good
behavior, could it be extended to acts to be done out of the
jurisdiction of the United States, would be effectual in some
cases where the offender is able to keep out of sight every
indication of his purpose which could draw on him the exercise
of the powers now given by law.
The expedition of Messrs. Lewis and Clarke, for exploring the
river Missouri, and the best communication from that to the
Pacific Ocean, has had all the success which could have been
expected. They have traced the Missouri nearly to its source,
descended the Columbia to the Pacific Ocean, ascertained with
accuracy the geography of that interesting communication across
our continent, learnt the character of the country, of its
commerce, and inhabitants; and it is but justice to say, that
Messrs. Lewis and Clarke, and their brave companions, have, by
this arduous service, deserved well of their country.
I congratulate you, fellow-citizens, on the approach of
the period at which you may interpose your authority,
constitutionally, to withdraw the citizens of the United States
from all further participation in those violations of human
rights which have been so long continued on the unoffending
inhabitants of Africa, and which the morality, the reputation,
and the best interests of our country, have long been eager to
proscribe. Although no law you may pass can take prohibitory
effect till the day of the year one thousand eight hundred and
eight, yet the intervening period is not too long to prevent,
by timely notice, expeditions which cannot be completed before
that day.
The receipts at the Treasury, during the year ending on the
30th day of September last, have amounted to nearly fifteen
millions of dollars, which have enabled us, after meeting the
current demands, to pay two millions seven hundred thousand
dollars of the American claims, in part of the price of
Louisiana; to pay of the funded debt, upwards of three millions
of principal, and nearly four of interest; and, in addition,
to reimburse, in the course of the present month, nearly two
millions of five and a half per cent. stock. These payments
and reimbursements of the funded debt, with those which had
been made in the four years and a half preceding, will, at
the present year, have extinguished upwards of twenty-three
millions of principal.
The duties composing the Mediterranean fund will cease, by
law, at the end of the present session. Considering, however,
that they are levied chiefly on luxuries, and that we have an
impost on salt, a necessary of life, the free use of which
otherwise is so important, I recommend to your consideration
the suppression of the duties on salt, and the continuation of
the Mediterranean fund instead thereof, for a short time, after
which that also will become unnecessary for any purpose now
within contemplation.
When both of these branches of revenue shall in this way be
relinquished, there will still, ere long, be an accumulation of
moneys in the Treasury beyond the instalments of public debt
which we are permitted by contract to pay. They cannot, then,
without a modification, assented to by the public creditors, be
applied to the extinguishment of this debt, and the complete
liberation of our revenues, the most desirable of all objects;
nor, if our peace continues, will they be wanting for any other
existing purpose. The question, therefore, now comes forward:
To what other objects shall these surpluses be appropriated,
and the whole surplus of impost, after the entire discharge of
the public debt, and during those intervals when the purposes
of war shall not call for them? Shall we suppress the impost,
and give that advantage to foreign over domestic manufactures?
On a few articles, of more general and necessary use, the
suppression, in due season, will doubtless be right, but the
great mass of the articles on which impost is paid are foreign
luxuries, purchased by those only who are rich enough to afford
themselves the use of them. Their patriotism would certainly
prefer its continuance and application to the great purposes
of the public education, roads, rivers, canals,[41] and such
other objects of public improvement as it may be thought
proper to add to the constitutional enumeration of federal
powers. By these operations new channels of communication
will be opened between the States; the lines of separation
will disappear; their interests will be identified and their
Union cemented by new and indissoluble ties. Education is here
placed among the articles of public care, not that it would
be proposed to take its ordinary branches out of the hands
of private enterprise, which manages so much better all the
concerns to which it is equal; but a public institution can
alone supply those sciences which, though rarely called for,
are yet necessary to complete the circle, all the parts of
which contribute to the improvement of the country, and some
of them to its preservation. The subject is now proposed for
the consideration of Congress, because, if approved by the time
the State Legislature shall have deliberated on this extension
of the federal trusts, and the laws shall be passed and other
arrangements made for their execution, the necessary funds will
be on hand, and without employment. I suppose an amendment to
the constitution, by consent of the States, necessary, because
the objects now recommended are not among those enumerated in
the constitution, and to which it permits the public moneys to
be applied.
The present consideration of a national establishment,
for education particularly, is rendered proper by this
circumstance; also that, if Congress, approving the
proposition, shall yet think it more eligible to found it on
a donation of lands, they have it now in their power to endow
it with those which will be among the earliest to produce the
necessary income. This foundation would have the advantage of
being independent on war, which may suspend other improvements,
by requiring for its own purposes the resources destined for
them.
TH. JEFFERSON.
DECEMBER 2, 1806.
The Message and documents therein referred to were read, and ordered to
lie for consideration, and three hundred copies thereof printed for the
use of the Senate.
WEDNESDAY, December 3.
DANIEL SMITH, from the State of Tennessee, attended.
THURSDAY, December 4.
JAMES HILLHOUSE, from the State of Connecticut, attended.
FRIDAY, December 5.
JAMES TURNER, from the State of North Carolina, attended.
TUESDAY, December 9.
ANDREW MOORE, from the State of Virginia, attended.
THURSDAY, December 11.
JOHN MILLEDGE, appointed a Senator by the Legislature of the State of
Georgia, in the place of James Jackson, deceased, took his seat, and his
credentials were read, and the President administered the oath to him as
the law prescribes.
FRIDAY, December 19.
The credentials of STEPHEN R. BRADLEY, appointed a Senator by the
Legislature of the State of Vermont, for the term of six years, from and
after the third day of March next, were presented and read; also, the
credentials of JOHN MILLEDGE, appointed a Senator by the Legislature of
the State of Georgia, for the term of six years, from and after the third
day of March next.
_Ordered_, That they lie on file.
MONDAY, December 29.
The PRESIDENT communicated a letter from ROBERT WRIGHT, stating that he
had resigned his seat in the Senate.
PHILIP REED, appointed a Senator by the Legislature of the State of
Maryland, in place of Robert Wright, resigned, produced his credentials,
and took his seat in the Senate.
HENRY CLAY, appointed a Senator by the Legislature of the State of
Kentucky, in place of John Adair, resigned, produced his credentials, and
took his seat in the Senate.[42]
The credentials of Mr. CLAY and Mr. REED were severally read, and the
oath was administered to them as the law prescribes.
Mr. REED also produced the credentials of his appointment to be a Senator
of the United States, from the State of Maryland, from the third day of
March next, until the fourth day of March, 1813, and they were read, and
ordered to lie on file.
JAMES FENNER, from the State of Rhode Island, attended.
MONDAY, January 12, 1807.
JAMES A. BAYARD, from the State of Delaware, attended.
TUESDAY, January 20.
The credentials of ANDREW GREGG, appointed a Senator of the United States
by the Legislature of the Commonwealth of Pennsylvania, for six years,
commencing on the 4th March next, were presented and read, and ordered to
lie on file.
THURSDAY, January 22.
_Burr’s Conspiracy._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:--
_To the Senate and House of Representatives of the United
States_:
Agreeably to the request of the House of Representatives,
communicated in their resolution of the 16th instant, I proceed
to state under the reserve therein expressed, information
received touching an illegal combination of private individuals
against the peace and safety of the Union, and a military
expedition planned by them against the territories of a power
in amity with the United States, with the measures I have
pursued for suppressing the same.
I had for some time been in the constant expectation of
receiving such further information as would have enabled me
to lay before the Legislature the termination as well as the
beginning and progress of this scene of depravity, so far as
it has been acted on the Ohio and its waters. From this, the
state of safety of the lower country might have been estimated
on probable grounds; and the delay was indulged the rather,
because no circumstance had yet made it necessary to call
in the aid of the legislative functions. Information, now
recently communicated, has brought us nearly to the period
contemplated. The mass of what I have received in the course of
these transactions, is voluminous; but little has been given
under the sanction of an oath, so as to constitute formal
and legal evidence. It is chiefly in the form of letters,
often containing such a mixture of rumors, conjectures, and
suspicions, as renders it difficult to sift out the real
facts, and unadvisable to hazard more than general outlines,
strengthened by current information, on the particular
credibility of the relator. In this state of the evidence,
delivered sometimes, too, under the restriction of private
confidence, neither safety nor justice will permit the exposing
names, except that of the principal actor, whose guilt is
placed beyond question.
Some time in the latter part of September, I received
intimations that designs were in agitation in the western
country unlawful and unfriendly to the peace of the Union;
and that the prime mover in these was AARON BURR, heretofore
distinguished by the favor of his country. The grounds of these
intimations being inconclusive, the objects uncertain, and the
fidelity of that country known to be firm, the only measure
taken was to urge the informants to use their best endeavors
to get further insight into the designs and proceedings of the
suspected persons, and to communicate them to me.
It was not till the latter part of October, that the objects
of the conspiracy began to be perceived; but still so blended
and involved in mystery, that nothing distinct could be
singled out for pursuit. In this state of uncertainty as to
the crime contemplated, the acts done, and the legal course
to be pursued, I thought it best to send to the scene, where
these things were principally in transaction, a person in
whose integrity, understanding, and discretion, entire
confidence could be reposed, with instructions to investigate
the plots going on, to enter into conference (for which he
had sufficient credentials) with the Governors and all other
officers, civil and military, and, with their aid, to do on
the spot whatever should be necessary to discover the designs
of the conspirators, arrest their means, bring their persons
to punishment, and to call out the force of the country to
suppress any unlawful enterprise in which it should be found
they were engaged. By this time it was known that many boats
were under preparation, stores of provisions collecting, and
an unusual number of suspicious characters in motion on the
Ohio and its waters. Besides despatching the confidential
agent to that quarter, orders were at the same time sent to
the Governors of the Orleans and Mississippi Territories, and
to the commanders of the land and naval forces there, to be
on their guard against surprise, and in constant readiness to
resist any enterprise which might be attempted on the vessels,
posts, or other objects under their care; and on the 8th of
November instructions were forwarded to General Wilkinson, to
hasten an accommodation with the Spanish commandant on the
Sabine, and as soon as that was effected, to fall back with
his principal force to the hither bank of the Mississippi,
for the defence of the interesting points on that river. By
a letter received from that officer on the 25th of November,
but dated October 21st, we learnt that a confidential agent of
Aaron Burr had been deputed to him with communications, partly
written in cipher and partly oral, explaining his designs,
exaggerating his resources, and making such offers of emolument
and command, to engage him and the army in his unlawful
enterprise, as he had flattered himself would be successful.
The General, with the honor of a soldier and fidelity of a good
citizen, immediately despatched a trusty officer to me, with
information of what had passed, proceeding to establish such
an understanding with the Spanish commandant on the Sabine, as
permitted him to withdraw his force across the Mississippi, and
to enter on measures for opposing the projected enterprise.
The General’s letter, which came to hand on the 25th of
November, as has been mentioned, and some other information
received a few days earlier, when brought together, developed
Burr’s general designs, different parts of which only had
been revealed to different informants. It appeared that he
contemplated two distinct objects, which might be carried
on either jointly or separately, and either the one or the
other first, as circumstances should direct. One of these was
the severance of the Union of these States by the Alleghany
mountains; the other, an attack on Mexico. A third object
was provided, merely ostensible, to wit, the settlement of
a pretended purchase of a tract of country on the Washita,
claimed by a Baron Bastrop. This was to serve as the pretext
for all his preparations, an allurement for such followers
as really wished to acquire settlements in that country,
and a cover under which to retreat in the event of a final
discomfiture of both branches of his real design.
He found at once that the attachment of the western country to
the present Union was not to be shaken; that its dissolution
could not be effected with the consent of its inhabitants, and
that his resources were inadequate, as yet, to effect it by
force. He took his course then at once, determined to seize on
New Orleans, plunder the bank there, possess himself of the
military and naval stores, and proceed on his expedition to
Mexico, and to this object all his means and preparations were
now directed. He collected from all the quarters where himself
or his agents possessed influence, all the ardent, restless,
desperate, and disaffected persons, who were ready for any
enterprise analogous to their characters. He seduced good and
well-meaning citizens, some by assurances that he possessed the
confidence of the Government, and was acting under its secret
patronage, a pretence which procured some credit from the state
of our differences with Spain; and others by offers of land in
Bastrop’s claim on the Washita.
This was the state of my information of his proceedings
about the last of November, at which time, therefore, it was
first possible to take specific measures to meet them. The
proclamation of November 27th, two days after the receipt
of General Wilkinson’s information, was now issued. Orders
were despatched to every interesting point on the Ohio and
Mississippi, from Pittsburg to New Orleans, for the employment
of such force, either of the regulars or of the militia, and
of such proceedings also of the civil authorities, as might
enable them to seize on all the boats and stores provided
for the enterprise, to arrest the persons concerned, and to
suppress, effectually, the further progress of enterprise.
A little before the receipt of these orders in the State of
Ohio, our confidential agent, who had been diligently employed
in investigating the conspiracy, had acquired sufficient
information to open himself to the Governor of that State, and
apply for the immediate exertion of the authority and power of
the State to crush the combination. Governor Tiffin and the
Legislature, with a promptitude, an energy, and patriotic zeal,
which entitle them to a distinguished place in the affection
of their sister States, effected the seizure of all the boats,
provisions, and other preparations within their reach, and thus
gave a first blow, materially disabling the enterprise in its
outset.
In Kentucky a premature attempt to bring Burr to justice,
without a sufficient evidence for his conviction, had produced
a popular impression in his favor, and a general disbelief
of his guilt. This gave him an unfortunate opportunity of
hastening his equipments. The arrival of the proclamation and
orders, and the application and information of our confidential
agent, at length awakened the authorities of that State to the
truth, and then produced the same promptitude and energy of
which the neighboring State had set the example. Under an act
of their Legislature, of December 23d, militia was instantly
ordered to different important points, and measures taken
for doing whatever could yet be done. Some boats (accounts
vary from five to double or treble that number) and persons
(differently estimated from one to three hundred) had in the
mean time passed the Falls of Ohio, to rendezvous at the mouth
of Cumberland, with others expected down that river.
Not apprised, till very late, that boats were building on
Cumberland, the effect of the proclamation had been trusted to
for some time in the State of Tennessee. But, on the 19th of
December, similar communications and instructions, with those
to the neighboring States, were despatched by express to the
Governor, and a general officer of the western division of the
State; and, on the 23d of December, our confidential agent left
Frankfort for Nashville, to put into activity the means of that
State also. But by information received yesterday, I learn that
on the 23d of December, Mr. Burr descended the Cumberland
with two boats merely of accommodation, carrying with him from
that State no quota towards his unlawful enterprise. Whether
after the arrival of the proclamation, of the orders, or of our
agent, any exertion which could be made by that State, or the
orders of the Governor of Kentucky for calling out the militia
at the mouth of Cumberland, would be in time to arrest these
boats, and those from the Falls of Ohio, is still doubtful.
On the whole, the fugitives from the Ohio, with their
associates from Cumberland, or any other place in that quarter,
cannot threaten serious danger to the city of New Orleans.
By the same express of December 19th, orders were sent to the
Governors of Orleans and Mississippi, supplementary to those
which had been given on the 25th of November, to hold the
militia of their Territories in readiness to co-operate, for
their defence, with the regular troops and armed vessels then
under command of General Wilkinson. Great alarm, indeed, was
excited at New Orleans by the exaggerated accounts of Mr. Burr,
disseminated through his emissaries, of the armies and navies
he was to assemble there. General Wilkinson had arrived there
himself on the 24th of November, and had immediately put into
activity the resources of the place, for the purpose of its
defence; and, on the 10th of December, he was joined by his
troops from the Sabine. Great zeal was shown by the inhabitants
generally; the merchants of the place readily agreeing to the
most laudable exertions and sacrifices for manning the armed
vessels with their seamen; and the other citizens manifesting
unequivocal fidelity to the Union, and a spirit of determined
resistance to their expected assailants.
Surmises have been hazarded that this enterprise is to receive
aid from certain foreign powers. But these surmises are without
proof or probability. The wisdom of the measures sanctioned
by Congress at its last session, has placed us in the paths
of peace and justice with the only powers with whom we had
any differences; and nothing has happened since which makes
it either their interest or ours to pursue another course. No
change of measures has taken place on our part: none ought to
take place at this time. With the one, friendly arrangement was
then proposed, and the law, deemed necessary on the failure of
that, was suspended to give time for a fair trial of the issue.
With the same power friendly arrangement is now proceeding,
under good expectations, and the same law deemed necessary on
failure of that, is still suspended, to give time for a fair
trial of the issue. With the other, negotiation was in like
manner then preferred, and provisional measures only taken to
meet the event of rupture. With the same power negotiation is
still preferred, and provisional measures only are necessary to
meet the event of rupture. While, therefore, we do not deflect
in the slightest degree from the course we then assumed, and
are still pursuing, with mutual consent, to restore a good
understanding, we are not to impute to them practices as
irreconcilable to interest as to good faith, and changing
necessarily the relations of peace and justice between us to
those of war. These surmises are, therefore, to be imputed to
the vauntings of the author of this enterprise, to multiply his
partisans by magnifying the belief of his prospects and support.
By letters from General Wilkinson, of the 14th and 18th of
December, which came to hand two days after the date of the
resolution of the House of Representatives, that is to say,
on the morning of the 18th instant, I received the important
affidavit, a copy of which I now communicate, with extracts
of so much of the letters as comes within the scope of the
resolution. By these it will be seen that of three of the
principal emissaries of Mr. Burr, whom the General had caused
to be apprehended, one had been liberated by _habeas corpus_,
and two others, being those particularly employed in the
endeavor to corrupt the General and Army of the United States,
have been embarked by him for ports in the Atlantic States,
probably on the consideration that an impartial trial could not
be expected during the present agitation of New Orleans, and
that that city was not as yet a safe place of confinement. As
soon as these persons shall arrive, they will be delivered to
the custody of the law, and left to such course of trial, both
as to place and progress, as its functionaries may direct. The
presence of the highest judicial authorities, to be assembled
at this place within a few days, the means of pursuing a
sounder course of proceedings here than elsewhere, and the aid
of the Executive means, should the judges have occasion to use
them, render it equally desirable for the criminals as for the
public, that, being already removed from the place where they
were first apprehended, the first regular arrest should take
place here, and the course of proceedings receive here their
proper direction.
TH. JEFFERSON.
JANUARY 22, 1807.
_Ordered_, That the Message, and documents therein referred to, lie for
consideration; and that five hundred copies thereof be printed for the
use of the Senate.
FRIDAY, January 23.
_Suspension of the Writ of Habeas Corpus._
On the motion of Mr. GILES,
_Ordered_, That Messrs. GILES, ADAMS, and SMITH of Maryland, be a
committee to inquire whether it is expedient, in the present state of
public affairs, to suspend the privilege of the writ of _habeas corpus_,
and that they have leave to report by bill or otherwise.
_Ordered_, That the Message of the President of the United States, of the
22d instant, together with the documents therein mentioned, be referred
to the same committee.
Whereupon, Mr. GILES, from the committee, reported a bill to suspend the
privilege of the writ of _habeas corpus_ for a limited time, in certain
cases; and the rule was, by unanimous consent, dispensed with, and the
bill had three readings, and was amended.
_Resolved_, That this bill pass as amended, that it be engrossed, and
that the title thereof be “An act to suspend the privilege of the writ of
_habeas corpus_ for a limited time in certain cases.”
The committee also reported the following message to the House of
Representatives; which was read and agreed to, to wit:
_Gentlemen of the House of Representatives_:
The Senate have passed a bill suspending for three months the
privilege of the writ of _habeas corpus_, in certain cases,
which they think expedient to communicate to you in confidence,
and to request your concurrence therein, as speedily as the
emergency of the case shall, in your judgment, require.
_Ordered_, That Mr. SMITH of Maryland be the committee to deliver the
message to the House of Representatives.
MONDAY, January 26.
_Burr’s Conspiracy._
A Message was received from the PRESIDENT OF THE UNITED STATES, as
follows:
_To the Senate and House of Representatives of the United
States_:
I received from General Wilkinson, on the 23d instant, his
affidavit, charging Samuel Swartwout, Peter V. Ogden, and James
Alexander, with the crimes described in the affidavit; a copy
of which is now communicated to both Houses of Congress.
It was announced to me at the same time, that Swartwout and
Bollman, two of the persons apprehended by him, were arrived
in this city, in custody, each, of a military officer. I
immediately delivered to the Attorney of the United States,
in this district, the evidence received against them, with
instructions to lay the same before the Judges, and apply for
their process to bring the accused to justice; and put into his
hands orders to the officers having them in custody to deliver
them to the Marshal, on his application.
TH. JEFFERSON.
JANUARY 26, 1807.
The Message and papers therein mentioned were read and referred to
Messrs. GILES, BAYARD, and ADAMS, together with the Message and papers
heretofore communicated to the Senate on the same subject, to consider
and report thereon; and five hundred copies of the Message of the
President of the United States and documents communicated this day, were
ordered to be printed for the use of the Senate.
TUESDAY, January 27.
JOHN SMITH, from the State of Ohio, attended.
WEDNESDAY, January 28.
Sundry written Messages were received from the PRESIDENT OF THE UNITED
STATES, by Mr. Coles, his Secretary.
The bill to prevent settlements being made on lands ceded to the United
States, until authorized by law, was read the second time, and made the
order of the day for Friday next.
The Senate resumed the second reading of the bill, entitled “An act
authorizing the erection of a bridge over the river Potomac, within the
District of Columbia,” and the motion that it be postponed to the next
session of Congress; and, after debate, the Senate adjourned.
THURSDAY, January 29.
_Burr’s Conspiracy._
The Message yesterday received from the PRESIDENT OF THE UNITED STATES
was read, as follows:
_To the Senate and House of Representatives of the United
States_:
By the letter of Captain Bissel, who commands at Fort Massac,
and of Mr. Murrell to General Jackson, of Tennessee, copies
of which are now communicated to Congress, it will be seen
that Aaron Burr passed Fort Massac on the 31st December, with
about ten boats, navigated by about six hands each, without any
military appearance; and that three boats with ammunition were
said to have been arrested by the militia at Louisville.
As the guard of militia posted on various points of the Ohio
will be able to prevent any further aids passing through that
channel, should any be attempted, we may now estimate with
tolerable certainty the means derived from the Ohio and its
waters, towards the accomplishment of the purposes of Mr. Burr.
TH. JEFFERSON.
JANUARY 28, 1807.
The Message and papers were read, and ordered to lie for
consideration.[43]
MONDAY, February 2.
_Death of the Representative Levi Casey, Esq._
A message from the House of Representatives informed the Senate
of the death of General Levi Casey, late a member of the House of
Representatives, and that his funeral will take place this day at one
o’clock.
Whereupon, _Resolved_, That the Senate will attend the funeral of General
Casey.
TUESDAY, February 17.
_Virginia Military Land Warrants._
A message from the House of Representatives informed the Senate that
the House have passed a bill, entitled “An act to extend the time for
locating Virginia military warrants, and for returning the surveys
thereon to the office of the Secretary for the Department of War.”
WEDNESDAY, February 18.
The credentials of the Honorable JOHN SMITH, appointed a Senator of the
United States for the State of New York, for the term of six years,
commencing on the 4th day of March next, were presented and read.
THURSDAY, February 19.
_Tennessee Lands._
The Senate resumed the consideration of the report of the committee,
appointed on the 17th of December last, “to inquire what further
proceeding is necessary to carry into effect the provisions of an act,
entitled ‘An act to authorize the State of Tennessee to issue grants and
perfect titles to certain lands therein described, and to settle the
claims to the vacant and unappropriated lands within the same.’”
And the report was agreed to.
WEDNESDAY, February 25.
_Salt Duty._
The Senate resumed the third reading of the bill, from the House of
Representatives, entitled “An act repealing the acts laying duties on
salt, and continuing in force for a further time the first section of the
act, entitled ‘An act further to protect the commerce and seamen of the
United States against the Barbary Powers;’” and on the question, Shall
this bill pass as amended? it was determined in the affirmative--yeas 15,
nays 12, as follows:
YEAS.--Messrs. Bradley, Condit, Giles, Howland, Kitchel, Logan,
Maclay, Milledge, Moore, Reed, Smith of Maryland, Smith of
Tennessee, Smith of Vermont, Thruston, and Worthington.
NAYS.--Messrs. Adams, Bayard, Gilman, Hillhouse, Mitchill,
Pickering, Plumer, Smith of New York, Sumter, Tracy, Turner,
and White.
TUESDAY, March 3.
_Adjournment._
Mr. MITCHILL reported, from the joint committee, that they had waited
on the President of the United States, who informed them that he had no
further communications to make to the two Houses of Congress.
The Senate took into consideration the resolution of the House of
Representatives for the appointment of a joint committee to wait on the
President of the United States to acquaint him with the intended recess
of the two Houses of Congress, and agreed thereto; and Messrs. MITCHILL
and ADAMS were appointed the committee on the part of Senate.
A message from the House of Representatives informed the Senate that the
House, having finished the business before them, are about to adjourn.
The Secretary was then directed to inform the House of Representatives
that the Senate, having finished the business before them, are about to
adjourn, whereupon the Senate adjourned without day.
NINTH CONGRESS.--SECOND SESSION.
PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.
MONDAY, December 1, 1806.
This being the day appointed by the constitution for the annual meeting
of Congress, the following members of the House of Representatives
appeared, and took their seats, to wit:
_From New Hampshire_--Silas Betton, Caleb Ellis, David Hough,
Samuel Tenney, and Thomas W. Thompson.
_From Massachusetts_--Joseph Barker, Barnabas Bidwell, John
Chandler, Orchard Cook, Jacob Crowninshield, Richard Cutts,
William Ely, Isaiah L. Green, Seth Hastings, Jeremiah Nelson,
Josiah Quincy, Ebenezer Seaver, William Stedman, Samuel
Taggart, and Joseph B. Varnum.
_From Vermont_--Martin Chittenden, James Elliot, James Fisk,
and Gideon Olin.
_From Rhode Island_--Nehemiah Knight, and Joseph Stanton.
_From Connecticut_--Samuel W. Dana, John Davenport, jr.,
Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B. Sturges, and
Benjamin Tallmadge.
_From New York_--John Blake, jr., Silas Halsey, John Russell,
Peter Sailly, Thomas Sammons, Martin G. Schuneman, Philip Van
Cortlandt, and Killian K. Van Rensselaer.
_From New Jersey_--Ezra Darby, Ebenezer Elmer, John Lambert,
James Sloan, and Henry Southard.
_From Pennsylvania_--Isaac Anderson, David Bard, Robert Brown,
Joseph Clay, Frederick Conrad, William Findlay, John Hamilton,
James Kelly, John Pugh, John Rea, Jacob Richards, John Smilie,
Samuel Smith, John Whitehill, and Robert Whitehill.
_From Delaware_--James M. Broom.
_From Maryland_--Charles Goldsborough, Patrick Magruder,
William McCreery, Nicholas R. Moore, and Roger Nelson.
_From Virginia_--Burwell Bassett, John Claiborne, John Clopton,
John Dawson, John W. Eppes, James M. Garnett, Peterson Goodwyn,
David Holmes, Walter Jones, Joseph Lewis, jr., Thomas Newton,
jr., and John Randolph.
_From North Carolina_--Willis Alston, jr., Thomas Kenan, Duncan
MacFarland, Nathaniel Macon, Speaker, Richard Stanford, Joseph
Winston, and Thomas Wynns.
_From South Carolina_--William Butler, Robert Marion, Thomas
Moore, and David R. Williams.
_From Georgia_--Peter Early, and David Meriwether.
_From Ohio_--Jeremiah Morrow.
_From Kentucky_--George M. Bedinger, John Boyle, and Thomas
Sanford.
_From Tennessee_--George W. Campbell, and John Rhea.
_Delegate from the Mississippi Territory_--William Lattimore.
Two new members, to wit: from Connecticut THEODORE DWIGHT, returned to
serve in this House, as a member for the said State, in the room of John
Cotton Smith, who has resigned his seat; and, from Virginia, WILLIAM A.
BURWELL, returned to serve in this House, as a member for the said State,
in the room of Christopher Clark, who has resigned his seat, appeared,
produced their credentials, were qualified, and took their seats in the
House.
DANIEL CLARK, returned to serve as a delegate from the Orleans Territory
of the United States, appeared, produced his credentials, was qualified,
and took his seat in the House.
And a quorum, consisting of a majority of the whole number, being
present, a message was sent to the Senate to inform them that a quorum of
the House is assembled, and ready to proceed to business.
A message from the Senate informed the House, that a quorum of the Senate
is assembled, and ready to proceed to business.
Mr. DAWSON and Mr. GEORGE W. CAMPBELL were appointed a committee, on the
part of the House, jointly with such committee as may be appointed on the
part of the Senate, to wait on the President of the United States, and
inform him that a quorum of the two Houses is assembled, and ready to
receive any communications he may be pleased to make to them.
A message from the Senate informed the House that the Senate have
appointed a committee on their part for the same purpose.
TUESDAY, December 2.
Several other members, to wit: from New York, HENRY W. LIVINGSTON, and
URI TRACY; from Maryland, JOHN CAMPBELL; from Virginia, JOHN MORROW,
THOMAS M. RANDOLPH, JOHN SMITH, PHILIP R. THOMPSON, and ALEXANDER
WILSON; from North Carolina, JAMES HOLLAND; and from South Carolina,
ELIAS EARLE, appeared, and took their seats in the House.
A Message was received from the PRESIDENT OF THE UNITED STATES. [For
which, see Senate proceedings of this date, _ante_, page 485.]
WEDNESDAY, December 3.
Several other members, to wit: from New York, JOSIAH MASTERS and DAVID
THOMAS; from Maryland, LEONARD COVINGTON; and from South Carolina, LEVI
CASEY, appeared and took their seats in the House.
Another new member, to wit, EDWARD LLOYD, from Maryland, returned to
serve in this House as a member for the said State, in the room of
Joseph H. Nicholson, who has resigned his seat, appeared, produced his
credentials, was qualified, and took his seat in the House.
MONDAY, December 15.
Two other members, to wit: GEORGE CLINTON, junior, from New York, and
WILLIAM DICKSON, from Tennessee, appeared, and took their seats in the
House.
_Coast Survey._
Mr. DANA, of Connecticut.--In 1802, an act was passed, authorizing a
survey of Long Island Sound. In pursuance of that act, the Secretary of
the Treasury caused a survey to be taken by two men, who appear to have
been, what the act intended, intelligent and proper persons. And there
has since been published a chart of the Sound, handsomely executed, on
a large scale, which must, I presume, be regarded as convenient and
valuable by those concerned in that branch of navigation.
At the last session of Congress, an act was passed for another survey.
It made provision for surveying the coast of North Carolina between Cape
Hatteras and Cape Fear, with the shoals lying off or between those capes.
I understand that measures have been taken for executing this act, but
that the vessel employed in the service, and all the papers respecting
the survey which had been made, had been lost near Ocracoke Inlet, in one
of the desolating storms experienced on the coast in the course of the
present year.
The surveys, which have thus been authorized, were perhaps of the most
urgent necessity; but other surveys of the coast are desirable. What has
already been done may be regarded as introductory to a general survey of
the coasts of the United States under authority of the Government. With
a correct chart of every part of the coast, our seamen would no longer
be under the necessity of relying on the imperfect or erroneous accounts
given of our coasts by foreign navigators. I hope the lives of our
seamen, the interest of our merchants, and the benefits to the revenue,
will be regarded as affording ample compensation for making a complete
survey of the coasts of the United States at the public expense.
The information which may be obtained will also be useful in designating
portions of territorial sea to be regarded as the maritime precincts of
the United States, within which, of course, the navigation ought to be
free from the belligerent searches and seizures.
It is proposed to extend the survey to the distance of twenty leagues
from the shore. This distance is mentioned with a view to the second
article of the treaty with Great Britain in 1783, which describes our
boundaries as “comprehending all islands within twenty leagues of any
part of the shores of the United States.”
The resolution, which I propose for the consideration of the House, is
expressed in these words:
_Resolved_, That the Committee of Commerce and Manufactures be
instructed to inquire into the expediency of making provision
for a survey of the coasts of the United States, designating
the several islands, with the shoals and roads or places of
anchorage within twenty leagues of any part of the shores of
the United States.
WEDNESDAY, December 17.
Two other members, to wit: PELEG WADSWORTH, from Massachusetts, and
DANIEL C. VERPLANCK, from New York, appeared, and took their seats in the
House.
THURSDAY, December 18.
Another member, to wit, ANDREW GREGG, from Pennsylvania, appeared, and
took his seat in the House.
_Importation of Slaves._
The House again resolved itself into a Committee of the Whole, on the
bill prohibiting the importation of slaves.
Mr. BIDWELL observed, that there were strong objections against the
forfeiture of persons of color imported into the United States. As the
bill stood, the forfeiture was to be followed by a sale of these persons,
as property, as slaves. On this point there was a great diversity in
the laws and habits of the respective States; to avoid an interference
with which, it appeared to him most advisable to do away the forfeiture,
leaving their disposition to the provisions of the laws of the several
States. If this part of the section should be struck out, those laws
would operate on this point.
There would, he said, be a serious difficulty in adopting the principle
of forfeiture accompanied with a sale. In some of the States, the idea
of such a species of property was excluded by their constitutions; in
those States there could be no such thing as a slave. It was true, that
the constitutions and laws of such States did not go the length of
interfering with the laws of other States, where slavery was permitted.
If fugitives from them sought an asylum in the State of Massachusetts,
for instance, they were faithfully restored, under the provisions of the
Constitution of the United States. Neither did the laws of Massachusetts
interfere with travellers passing through it with slaves; but so
far as it respected persons coming to reside in the State, they were
manumitted, as a matter of course.[44] He believed that no contract for
their sale within the State would be of any validity; nor did he believe
any power had been given to the United States to render such sale valid.
If there were such a power, its tendency would be to introduce into
that State persons contrary to its laws. If such a sale were valid,
it would interfere with those laws; and if not valid, it would be a
perfect nullity, and the provision be thus altogether inoperative. It
was admitted that there was no probability of such an importation into
States where slavery was not allowed; yet such a thing might take place,
and Congress ought not to legislate under the idea that it would not take
place.
Mr. EARLY observed, that this motion could only be viewed as an old
thing offered in a new shape, intended to have the same effect as the
motion offered the preceding day declaring persons of color imported
into the United States free. He thought it betrayed great inconsistency.
Those who advocated it had yesterday supported an amendment which, by
declaring all such persons free, went directly to interfere with the laws
of States where slavery was permitted; to-day they gravely maintained
the inexpediency of any such interference whatever. The great difficulty
insisted upon was, that the operation of this law in States where slavery
was not permitted, would contravene the existing laws by forfeiting
the imported slaves. But this difficulty had no solidity in it--it was
altogether ideal, as from the nature of things the case of an importation
in such States could not occur; at all events, it was among the most
improbable events in nature.
Mr. BIDWELL moved to strike out all that part of the fourth section which
related to the forfeiture of negroes.
Mr. EARLY asked, what substitute was intended.
Mr. BIDWELL replied, that he should move that the committee rise, and
that the bill be recommitted.
Mr. QUINCY, of Massachusetts.--I am opposed to the motion of my
colleague, (Mr. BIDWELL,) to strike out the forfeiture. The United States
ought to retain the control of them. What is to be done with them, is
another question. But for the United States to divest the old owners
of their right, and provide no means for their protection afterwards,
appears to me cruel and dangerous. They are helpless, ignorant of our
laws, and of our language and manners. How are they to be supported?
If imported into the South, they will be slaves; if into the North,
vagabonds. My colleague ought to show what is to be done with them.
I am not prepared with a plan, but I should suppose that they might
be disposed of in service, in such States as would admit them, at the
discretion of the Secretary of the Treasury. If forfeited to the United
States, we can, by a general provision, do what we please with them. And
I have no doubt that what we do will be both prudent and humane.
Mr. D. R. WILLIAMS.--I agree with the gentleman from Massachusetts, who
spoke last, that the amendment ought not to be adopted. It is incumbent
on the gentleman who introduced it, (Mr. BIDWELL,) to tell us what is to
be done with these negroes, if they are not to be forfeited. I say, it is
his duty to inform us how they are to be disposed of. Give up the idea
of forfeiture, and I challenge the gentleman to invent fines, penalties,
or punishments of any sort, sufficient to restrain the slave trade. The
same identical persons will break this law who have broken the act of
1794. And who are these persons? They are the gentleman’s own countrymen;
they are the people of Rhode Island, who are concerned in this business.
You cannot stop the trade by penalties. I have myself seen a ship of
more than three hundred tons, the George Washington, sold for five
dollars. Nobody would bid. The gentleman over the way shakes his head; he
acknowledges the truth of my remarks on his countrymen.
Mr. BIDWELL knew nothing of the New England men being concerned in
this trade. He lived in the interior of the country, and had little
acquaintance with mercantile men. If they were concerned, he was willing
that they should be punished by fine and penalties, and to any extent;
but he was still opposed to a forfeiture of the negroes generally by a
law of Congress. The States may determine, perhaps, whether it shall be
done.
Mr. QUINCY, of Massachusetts.--I think I now understand the plan of my
colleague, (Mr. BIDWELL,) and I like it less than before. It is “to
leave them to the operation of the laws of the respective States.” This
is only another form of expression of leaving them to be slaves. It is
leaving the title of these persons according to the laws of the State
into which they are imported. Is the gentleman sure this will not be
an encouragement? It certainly will be, if the importer can find means
to evade the penalty of the act; for there he has all the advantage of
a market enhanced by our ineffectual attempt to prohibit. If he relies
upon the penalty, I have no doubt it will be evaded. Persons without
responsibility will be made captains of these ships, or other means
devised to escape the penalty, and as his property is, by this amendment,
secured to the owner, great profits will result from the traffic.
Mr. EARLY.--I did suppose that the United States would pass a law
themselves, as soon as they had the power, to prohibit the slave trade
effectually. But the gentleman from Massachusetts (Mr. BIDWELL) proposes
that Congress shall relinquish all the credit of this measure, and
resign it up to the States. This, I hope and trust, Congress will never
agree to.
If the amendment prevails, I tell you that slaves will continue to be
imported as heretofore. I tell the gentleman from Massachusetts, what
every man in the Southern States knows already, that slaves will continue
to be imported, unless you forfeit them. You cannot get hold of the ships
employed in this traffic. Besides, slaves will be brought into Georgia
from East Florida. They will be brought into the Mississippi Territory
from the bay of Mobile. You cannot inflict any other penalty, or devise
any other adequate means of prevention, than a forfeiture of the Africans
in whose possession they may be found after importation. I tell you this
is the only effectual method. I implore Congress to look seriously on
this subject. I implore them, if they do any thing, to pass a law which
will not disgrace themselves.
Mr. PITKIN, of Connecticut.--Mr. Chairman, I rise, sir, for the purpose
of making a motion, which, I trust, will supersede the one now before
the committee. It is, that the committee should rise, and that the bill
before them be referred to a select committee. Under this motion, I
presume it will be in order to state my reasons, generally, without being
confined to the question of amending the fourth section of the bill,
which is now before the committee.
As the persons thus brought into the country contrary to law, are to be
“forfeited,” they are to be proceeded with, as appears by a subsequent
section of the bill, “in the manner prescribed by the act, entitled, ‘An
act to regulate the collection of duties on imposts and tonnage.’”
What, sir, is this process? They are to be seized by the revenue officers
as goods, wares, and merchandise, imported contrary to law. They are to
be libelled in the federal courts, are to be condemned, and then sold
to the highest bidder by an officer of the court at public auction, and
one-half of the avails, at least, is to be paid into the Treasury of the
United States. This, sir, is a proposition, this is a mode of proceeding
against those persons, to which I cannot bring my mind to consent, unless
_absolute necessity_ should require it. What, sir, shall we, in a law
made for the express purpose of preventing the slave trade, declare that
these unfortunate blacks, brought into this country, not only against
their own will, but against the express provisions of the law itself,
shall be sold as slaves for the benefit of the United States, and the
price of their slavery be lodged in the public coffers? I trust not, sir;
I believe some other mode may be devised to prevent the slave trade.
While I am unwilling to give my assent to this mode of disposing of them,
I am free to confess that I feel the force of the remarks made by the
Southern gentleman, that, unless some care should be taken of them after
they are landed, the property, and perhaps the lives of those who live
in States where slavery is permitted, would be insecure. And here, sir,
I would suggest, whether, instead of selling those unfortunate beings
as slaves, provision might not be made, that they should be disposed of
for a term of years; say seven, eight, or ten years, until they should
be able to support themselves, and at the end of the term they should
be free. If Congress have power to prohibit their importation, they
certainly have power to say, that the imported shall have no right or
claim whatever in them; and also to declare what shall be their state and
condition when imported. Indeed, sir, Congress have already determined
this principle in May, 1800. They passed an act, in addition to an act,
entitled “An act to prohibit the carrying on the slave trade from the
United States, with any foreign place or country.”
Mr. EARLY.--In answer to the gentleman from Connecticut, I will
acknowledge that there is an inconsistency in this bill. But it seems
very wonderful that the gentleman has at last found it out. I offered an
amendment, a short time since, in order to obviate this inconsistency;
but, unless I am much mistaken, that very gentleman voted against it.
In the name of all the friends of this bill, I offer my most grateful
acknowledgments to the gentleman for proving, in the most incontestable
manner, the absolute necessity of that very provision in the bill which
he opposes. He has shown, most undeniably, that you must forfeit the
negroes, that you cannot possibly get at the vessel or the captain, to
operate on them. In the name of common sense, I ask you, then, what can
you find to operate on, but the negroes imported? and yet, with these
truths staring them in the face, gentlemen are opposed to the measure. I
wish the gentleman from Connecticut, from the immensity of the resources
which he has displayed on this subject, would tell us what, beside the
negroes, can be found for the law to operate upon.
I am willing that the committee rise, but not for the purpose mentioned.
The gentleman moves you to rise, and refer the bill to a select
committee; and for what? To determine the principle of the bill; not
to specify the detail. What can the select committee report? Unless
instructions are given them, they must report the same bill, and then you
will be just where you are now.
The question being taken on the committee’s rising, it was carried--ayes
72.
Mr. PITKIN hoped they would not have leave to sit again.
Mr. SLOAN.--Notwithstanding the very high respect I entertain for the
gentleman who reported this bill, I think it is easier to make an entire
new one, than to undertake to amend this, so that it will answer.
The question being taken on the committee having leave to sit again, it
was lost--ayes 45, noes 57.
The bill was then recommitted to a committee of seven, consisting of
Messrs. EARLY, T. M. RANDOLPH, KELLY, J. CAMPBELL, KENAN, COCKE, and VAN
RENSSELAER.
FRIDAY, December 19.
Another member, to wit, ABRAM TRIGG, from Virginia, appeared, and took
his seat in the House.
MONDAY, December 22.
_Manhattan Company._
Mr. CLINTON presented a petition from the President and Directors of the
Manhattan Company in New York. The petition states that the law which
directs that custom-house bonds shall be exclusively deposited in the
United States Bank, affects their interests very injuriously; that the
monthly deposits at New York amount, on an average, to $250,000. That
the merchants dealing at the Manhattan Bank, make in Manhattan notes
large payments on account of custom-house bonds into the United States
Bank, which, by means of their notes; draws largely on the Manhattan
Bank for specie; that, by these and similar means, the United States
Bank regulates the discount, and contracts the business of all the other
banking institutions in the city. That the reasons which once existed for
giving the United States Bank a preference, have since ceased, by the
sale of the public stock. But the stockholders in the United States Bank
are now almost entirely foreigners, which circumstance is favorable to
the erection of foreign influence in this country, and ought to excite
alarm.
Mr. QUINCY was personally indifferent whether the petition was referred
to the Committee of Ways and Means, but, as the subject manifestly
affected the revenue, it was proper to refer it to that committee. It was
a question very material to the revenue, whether the custom-house bonds
should be deposited in the United States Bank. The contrary supposition
implies that all banks are solid and secure.
Mr. CROWNINSHIELD conceived that the subject of the petition had no more
relation to the Committee of Ways and Means than to that of Commerce
and Manufactures, or any other standing committee of the House. Its
object was, to procure relief against an injurious monopoly, possessed
by a particular banking company. It neither proposed to give or take
away one shilling of the public money. The Committee of Ways and Means
were already pressed with a great deal of matter. Mr. C. did not wish
to trouble the House with the United States Bank, but more than sixteen
years they had enjoyed an exclusive monopoly, which has been very
injurious to all other banking institutions, as has been very properly
detailed in the petition. He meant to propose a plan for equalizing the
benefits of the deposits. This is a subject which deeply interested the
constituents of his colleague, (Mr. QUINCY.) The merchants of Boston
cannot procure any large sums except from the United States Bank, which
controls all the other banks in that town.
The SPEAKER informed Mr. CROWNINSHIELD that it was improper to speak of
any gentleman’s district.
Mr. QUINCY observed, that all subjects relating to the revenue properly
belonged to the Committee of Ways and Means. The present subject deeply
implicates the revenue, because it all depends upon being safely
deposited. His colleagues seemed to have a great fellow-feeling for the
Committee of Ways and Means, and appeared to be anxious lest they should
be pressed with too much business; but that committee had sufficient time
to consider all the business referred to them.
The question being taken on referring the petition to the Committee of
Ways and Means, it was lost--ayes 32. It was then referred to a select
committee of nine.
TUESDAY, December 23.
Another member, to wit, EDWIN GRAY, from Virginia, appeared, and took his
seat in the House.
FRIDAY, December 26.
Another member, to wit, MATTHEW CLAY, from Virginia, appeared and took
his seat in the House; and another new member, to wit, DENNIS SMELT,
from Georgia, returned to serve in this House, as a member for the said
State, in the room of Joseph Bryan, who has resigned his seat, appeared,
produced his credentials, was qualified, and took his seat in the House.
MONDAY, December 29.
Several other members, to wit, from Massachusetts, PHANUEL BISHOP; from
New York, GURDON S. MUMFORD and NATHAN WILLIAMS, from New Jersey, WILLIAM
HELMS; from Kentucky, JOHN FOWLER; and the Delegate from the Indiana
Territory, BENJAMIN PARKE, appeared, and took their seats in the House.
_Importation of Slaves._
On motion of Mr. EARLY, the House resolved itself into a Committee of the
Whole on the bill for the prohibition of the slave trade.
Mr. BIDWELL.--It appears to me that all the objections which have been
urged against the amendment under consideration, may be reduced to two.
1. That a forfeiture is necessary to deprive the importers of every
motive to introduce any slaves into the country, and thus render the
prohibition completely effectual. 2. That if the slaves are emancipated
and turned loose in the Southern States, they will be a destructive
nuisance to the people of those States. Neither of these objections is,
in my apprehension, well founded. If the motion to strike out prevails,
another amendment may be made, declaring that the importer has no
right to the slaves, which he introduces. This will be a declaration
conformable to the state of things, and in exact accordance with the laws
of nature and of nations. It is not in order to offer an amendment now,
but if the present motion prevails, I design to propose an amendment to
this effect. This will answer the purpose completely, and remove from
the importer every temptation to engage in this traffic. The idea of
forfeiture proceeds wholly on a false principle. It implies that the
importer has a right to the slaves. But an amendment like that which I
have suggested will declare the fact as it is; it will be conformable
to truth. But if the section passes as it now is, with the clause of
forfeiture retained, we recognize in our statute book a false principle,
which neither the constitution nor the laws of the United States have
ever authorized, to wit: that a property may be had in human beings. The
constitution and laws have always left the disposition of slaves to the
States, and hitherto have never recognized the principle of slavery.
But if we do not forfeit the negroes, the question is asked again and
again, with an air of triumph, what is to be done with them? For my part
I had rather strike out the section, and do nothing at all, than retain
the forfeiture. If we do nothing we shall not increase the evil. They
will then be left to the States to dispose of according to the State
laws. This will not increase the evil. I am, however, willing to agree
to any practicable mode of disposing of them. But at any rate, I am for
striking out the forfeiture, and opposed to disgracing our statute book
with a recognition of the principle of slavery.
Mr. QUINCY.--Since there is so general an agreement as to the end, I
wish it were possible we could unite more perfectly as to the means.
Those in favor of forfeiture are anxious for nothing so much as to
prohibit totally the importation of slaves. Indeed, it is for this very
reason they are in favor of it, because they assert, and to my mind
on unquestionable ground, that this is your only effectual means of
prohibition. They are also anxious that if they are brought they should
not be made slaves in their part of the country. As to their being made
free in the Southern States, that is out of the question. The policy of
those States, the first duty of self-preservation, forbid it.
The argument of my colleague is, “forfeiture implies a right, vested in
importers. Now it is disgraceful to the United States to admit such an
implication. The importer has no right. He could acquire none. These
persons are free by the law of nature--as free as any of us. The African
prince who sold them was a usurper. The purchasers in Africa were
trespassers against the law of nature. They cannot acquire any right of
property in these persons, and it is shameful for the United States,
by forfeiture, to admit it.” Sir, the conclusions of the gentleman are
perfectly correct--his principles are solid. No man in this House denies
either. Refer this question between the African prince and his subjects,
and between the African and his importer, to five hundred juries in
New England, and five hundred times a verdict would coincide with
the principles and reasonings of my colleague. But the misfortune is,
that, notwithstanding all these true and unquestionable principles, the
African prince, at this day, does, and, after our law passes, will sell
his subjects. To all practical purposes, a title is acquired in them,
and they are passed, like other property, from one to another, in their
native country. But this is not the worst. A title in this description of
persons is not only allowed in Africa, but is, and must be, after your
law passes, in a large section of your own country. The gentlemen from
that part of the United States tell you that they cannot be allowed to be
free among them. The first law, self-preservation, forbids it.
Now this is that real, practical state of things to which I invite
gentlemen to look, and on which they ought to legislate.
I ask concerning it, how ought we to reason? What is our duty?
First. Do all you can to prohibit. Next, if you fail in this--if, in
spite of your laws and their penalties, this description of persons be
brought into the United States, then place yourselves in such a situation
as may enable you best to meliorate the condition of this unhappy class
of men, consistent with self-preservation, and with the deep stake which
an important section of the country has in the policy which you adopt.
On both accounts forfeit. First, because it is the best means of
prohibition. The gentleman from Georgia (Mr. EARLY) declares it is the
only means by which you can do it effectually. The argument he used on
this point, on a former day, is to my mind conclusive. From the situation
of the Southern States, particularly Georgia, you can only prevent the
traffic by taking away the inducement to purchase. And this can only be
done by making the right of every purchaser be forfeited as a penalty.
Next, if contrary to your laws they be imported, they are thrown on the
humanity of the United States. They are brought here by our citizens, and
it is the duty of the National Government to reserve the control of them,
so as to be certain that the best is done for the amelioration of their
condition that our own safety permits. On this account, forfeit. It is
only as a commercial regulation that the National Government can get this
control. If we do not take that title in these persons into the United
States, which the laws of some States recognize, in those States they
are slaves--they must be slaves. Those States can never permit them to
be any thing else. This can only be done by forfeiture. The character of
your policy will depend upon what you do with them after the forfeiture.
Gentlemen reason as if those persons were inevitably to be sold under the
hammer. Certainly this is not the necessary consequence. Are they not
after forfeiture at your control? May you not do with them what is best
for human beings in that condition in which these miserable creatures
are, when they first arrive in this country, naked, helpless, ignorant
of our language, our climate, our laws, our character, and our manners?
Are you afraid to trust the National Government, and yet, by refusing to
forfeit, will you throw them under the control of the States, all of whom
may, and some of them will, and must, make them slaves?
But the great objection to forfeiture is, “it admits a title.” I answer,
first, this does not necessarily follow. All the effect of forfeiture
is, that whatever title can be acquired in the cargo shall be vested
in the United States. If the argument of the gentleman be correct, and
the species of cargo be such as that, from the nature of the thing,
no title can be acquired in it, then nothing can vest in the United
States; and the only operation of forfeiture is to divest the importer’s
color of title by the appropriate commercial term--perhaps the only
term we can use effectual to this purpose, and which does not interfere
with the rights of the States. Grant that these persons have all the
rights of man; will not these rights be as valid against the United
States as against the importer; and by taking all color of title out of
the importer, do we not place the United States in the best possible
situation to give efficiency to the rights of man, in respect to the
persons so imported?
But, next, let us agree that forfeiture does admit a species of title,
lost on one side and acquired on the other; such as we cannot prevent
being recognized in those States where these importations will most
frequently take place; I ask, which is best, and which most humane? Admit
a title, gain it for the United States, and then make these miserable
creatures free, under such circumstances, and in such time, as their
condition into which they are forced permits, or deny the possibility of
acquiring a title, and leave them to be slaves? But my colleague (Mr.
BIDWELL) has a sovereign specific for this. He says, “We do not make
them slaves, we only leave them to the laws of the respective States.”
But I ask, if the laws of all the States may, and those of some of the
States do, and necessarily will make them slaves, “by leaving them to
the operation of the laws of these States,” do we not as absolutely make
them slaves as though we voted them to be such in this House? To my mind,
when we have the power, if we fail to secure to ourselves the means of
giving them their freedom, under proper modifications, we have an agency
in making them slaves. To me it seems that the amendment proposed,
striking out the forfeiture, will defeat the very end its advocates
have in view. Really, sir, I fear it will happen to the honorable mover
of the amendment (Mr. BIDWELL) as it happened to another celebrated
asserter of African rights--I mean the renowned Knight of La Mancha.
We all recollect that while that worthy knight was, with all the real
honesty in the world, descanting on the moral fitness of things on the
eternal, unalienable, imprescriptible rights of man!--that during all
that time he was exercising himself and instructing others on these
themes--the very persons he had undertaken to deliver--the great African
Princess Micomicona, Queen of the great African Kingdom Micomicon, with
her father, her mother, her brothers, her sisters, in short her whole
family, were left in absolute and irretrievable slavery; their fetters
not knocked off, nor their shackles lightened, nor one ray of light
thrown in upon their prison. And yet the good knight, with all possible
self-complacency, astride of his theories, was couching his lance,
scouring the plain, the mirror of philanthropic chivalry, the very cream
of the milk of human kindness!
Now, I say, sir, a little more practicable good, and a little less
theoretic impulse. Reason and legislate according to the actual state
of this description of persons. Place yourselves so as to do the best
possible for their good. They are thrown on your mercy. Do not trust
to others. You can be most certain this power will not be abused in
your own hands. Forfeit--because this is the technical word for getting
the control of them, and the only certain way of making them secure of
your humanity. But what shall be done with them? That is a subsequent
consideration. It is enough for me to know that this House can never do
any thing with them which humanity and self-preservation do not dictate.
Gentlemen will not pretend that these Africans have more rights by nature
than our children. And yet, in every parish, poor children are bound
out, without their consent, until they are of age, and of capacity to
take care of themselves. These Africans are as helpless, ignorant, and
incompetent as such children, and the wisdom of the National Legislature
certainly can, and I have no doubt will, devise means to make them useful
members of society, without any infringement of the rights of man.
Mr. MACON, (the Speaker.)--I still consider this a commercial question.
The laws of nations have nothing more to do with it than the laws of
the Turks or the Hindoos. We derive our powers of legislation not
from the laws of nations, but from the constitution. If this is not a
commercial question, I would thank the gentleman to show what part of the
constitution gives us any right to legislate on this subject. It is in
vain to talk of turning these creatures loose to cut our throats.
Suppose we leave them as the gentleman from Massachusetts (Mr. BIDWELL)
has suggested, what will become of them? They will be smuggled in and
made slaves. All the arguments which I have yet heard have served to
confirm the opinion that a forfeiture is the only effectual mode of
prohibition; and though our sincerity has been doubted with an if, yet I
believe every member in this House is solicitous to put a complete stop
to this nefarious traffic.
WEDNESDAY, December 31.
_Importation of Slaves._
The House proceeded to consider the amendments reported by the Committee
of the Whole on the twenty-ninth instant, to the bill to prohibit
the importation or bringing of slaves into the United States, or the
territories thereof, after the 31st of December.
Mr. SLOAN was decidedly opposed to the amendment. He was aware that some
might charge him with departing from his well-known peaceable principles,
in contending for so sanguinary a punishment as death. But many crimes
inferior to this were punished with death, and he thought that there
ought to be a proportion in these things. Mr. S. stated the hardships of
the Africans, and the cruel circumstances attending their importation,
and insisted on the magnitude of the crime at considerable length.
After some conversation between Mr. SMILIE and the SPEAKER, on a point of
order, Mr. DANA called for a division of the question. The question was
accordingly divided, the first being on striking out of the bill so much
as inflicts the punishment of death.
Mr. ELY was against striking out. He deemed the crime in question as one
of the most heinous kind, and one which ought to be punished capitally.
But his principal reason for advocating so severe a punishment was, that
he thought it the most effectual method of putting a stop to the trade.
The other provisions of the bill were, in his opinion, not sufficient.
If the punishment of death was inflicted, he presumed no persons would
venture to engage in the trade, and run the risk of being punished,
especially, as the traffic is one of the most uncertain and perilous
kinds. It is said, if you punish with such severity, none will inform;
but will any one venture to run the risk under this impression? Mr. E.
thought not. Besides, this is the most humane punishment, because it will
most effectually prevent the accumulation of miseries that result from
the trade. It will, also, remove all the difficulties on the subject of
forfeiture, by preventing the introduction of slaves.
Mr. TALLMADGE said he considered the question before the House to be,
whether we should strike out that part of the section which attaches the
crime of felony to this nefarious traffic, and, of course, annexes to it
the punishment of death. He trusted the House would not consent to strike
out that clause of the bill, the retention of which should receive his
hearty support.
Since I have had the honor of a seat in this House, I can scarcely
recollect an instance in which the members seem so generally to agree in
the principles of a bill, and yet differ so widely as to its details.
There seems to be great unanimity respecting the atrocity of the crime,
but a wide difference of opinion as to the measures necessary to prevent
it. To me, it is matter of surprise as well as of regret, that gentlemen,
who appear so ardently engaged to prevent the introduction of slaves into
our country, should not be willing to unite with us in providing for it
an adequate punishment. The evils which may be expected to result from
this commerce, if persisted in, will fall on the Southern States; and the
Eastern and Middle States are accused of carrying it on. If this be the
fact, and gentlemen are sincere in their declarations, why will they not
unite with us to mete out that punishment which, on their own statements,
will fall exclusively on those who are concerned in this execrable
traffic from the Northern States?
Mr. MOSELY.--The only objection which has been made against this section
of the bill, as it was originally introduced, is, that the severity of
the penalty as there prescribed, would probably prevent the law from
being carried into execution.
I entirely agree in the justice of the general remark, that it is the
certainty, more than the severity, of the punishment, which tends to
prevent the commission of crimes; that when the penalty is excessive or
disproportioned to the offence, it will naturally create a repugnance to
the law, and render its execution odious.
But I would ask, in the first place, what punishment can be considered as
too severe to be inflicted on this inhuman and murderous traffic? Viewed
in all its consequences, there is hardly to be found, I apprehend, in the
whole catalogue of crimes, one attended with more accumulated guilt. I
have, indeed, sir, heard no gentleman suggest any thing in palliation of
this offence, or deny that it is justly deserving of death. Why, then,
are we to presume that the law would not be enforced? The gentlemen from
the South assure us that they, and the people whom they represent, are
sincerely solicitous to prevent the further importation of slaves into
this country, and they will cheerfully and cordially co-operate in the
most effectual measures for that purpose. Will they, then, from motives
of tenderness to the persons employed in importing them, be unwilling to
subject those persons to the punishment they justly merit?
Sir, there is one circumstance worthy of attention, which I think must
obviate every objection of this sort. Who are the people engaged in this
business? We have been repeatedly told, and told with an air of some
triumph, by gentlemen from the South, that it is not their citizens; that
they have no concern in this nefarious traffic; that it is the people
from the Northern States who import these negroes into the Southern
States, and thereby seduce their citizens to become their purchasers.
If this be the fact, are we to believe that they will entertain any
particular feelings of partiality or passion towards this class of
people, or that they will not feel a just degree of indignation towards
them, and be disposed to subject them to the most exemplary punishment?
And as it respects the great body of the people in the Northern States,
at least, I will presume to say, of the State which I have the honor to
represent, should any of their citizens be convicted upon this law, so
far from charging their Southern brethren with cruelty or severity in
hanging them, they would acknowledge the favor with gratitude. When we
consider the character of the persons engaged in this traffic, that they
are the most hardened and abandoned of the human species, and that it
is extremely lucrative, can we suppose that any penalty short of death
will deter them from it? I shall be very glad if even this will have the
effect.
Mr. LLOYD.--Though this traffic is sanctioned by the Constitution and
laws of the United States, I regard it with hatred and abhorrence, and
conceive it to be of the highest importance that we take means to put
a complete stop to its further continuance. But, in my opinion, the
punishment of death is not best calculated to accomplish this object.
Besides, it is not proportional to the crime. This subject has not,
I conceive, been fairly argued. Very few of the negroes brought into
this country are kidnapped and stolen away. Look at the condition of
the people of Africa. Three-fourths of those brought into this country
are slaves originally, either by descent or conquest. It is a fact
that slavery prevails extensively in Africa. Those taken in conquest
are disposed of and sent abroad on account of the vindictive spirit of
those people. Such is their thirst for revenge, that this is absolutely
necessary for the safety of the conqueror. Of course, all the arguments
urged on the ground of the slaves being kidnapped and carried away from a
state of freedom, are fallacious.
Mr. OLIN.--I would ask gentlemen if they would not as soon be willing to
be brought to the halter as to be made slaves for life? If they would,
and I trust they would, man-stealing is a crime as bad as murder, and
ought to be punished as heavy. I was at first against the punishment of
death; but I own that gentlemen have convinced me by their arguments, and
I am now the other way. I am persuaded that gentlemen will think there is
nothing dishonorable in this changing one’s mind.
Mr. EARLY.--I formerly thought that the decision on this question was not
a matter of any great importance; but as it seems now to be considered as
a prelude to an attack on subsequent parts of the bill, it appears to me
now important that the subject be well understood and rightly decided.
What are you told? You are now told that a forfeiture is unnecessary,
and that to inflict the punishment of death is the only way to stop this
trade. I consider this as an old attack revived in a new form. I hope the
House will pardon me for undertaking to assign reasons for the bill as
reported.
I should like to know how the fear of death will operate on a man who
is bound with his slaves to a country where he knows the punishment
will not be enforced. He will be bound to a country where the people
see slaves every hour of their lives; where there is no such abhorrence
of the crime of importing them, and where no man dare inform. My word
for it, I pledge it to-day, and I wish it may be recollected; no man in
the Southern section of the Union will dare inform. It would cost him
more than his life is worth. No man would risk it when it led to the
punishment of death, when it was not for an offence which nature revolts
at. They do not consider it as a crime.
The gentleman (Mr. SMILIE) has said that, in the Southern States, slavery
is felt and acknowledged to be a great evil, and that therefore we will
execute a severe law to prevent an increase of this evil. Permit me to
tell the gentleman of a small distinction in this case. A large majority
of the people in the Southern States do not consider slavery as a crime.
They do not believe it immoral to hold human flesh in bondage. Many
deprecate slavery as an evil; as a political evil; but not as a crime.
Reflecting men apprehend, at some future day, evils, incalculable evils,
from it; but it is a fact that few, very few, consider it as a crime.
It is best to be candid on this subject. If they considered the holding
of men in slavery as a crime, they would necessarily accuse themselves,
a thing which human nature revolts at. I will tell the truth. A large
majority of people in the Southern States do not consider slavery as even
an evil. Let the gentleman go and travel in that quarter of the Union;
let him go from neighborhood to neighborhood, and he will find that this
is the fact.
Mr. HOLLAND.--In the Southern States slavery is generally considered
as a political evil, and in that point of view nearly all are disposed
to stop the trade for the future. But have capital punishments been
usually inflicted on offences merely political? I believe not. Fine
and imprisonment are the common punishments in such cases. The people
of the South do not generally consider slavery as a moral offence. The
importer might say to the informer that he had done no worse, nor even
so bad as he. It is true that I have these slaves from Africa; but I
have transported them from one master to another. I am not guilty of
holding human beings in bondage. But you are. You have hundreds on your
plantations in this miserable condition. By your purchases you tempt
traders to increase the evil. You and your ancestors have introduced this
calamity into the country, and you are continuing, you are augmenting
it. The importer might hold the same language to the jury and the judge
who try him. He might tell them that they were even more guilty than he.
Under such circumstances the law inflicting death would not be executed.
But if you punish by fine and imprisonment only, you will find the people
of the South willing and ready to execute the law.
Mr. DWIGHT.--We are all happily agreed in the great object of the
bill--the prevention of the importation of slaves into the United States.
Unfortunately, we are not so well agreed in the means to effect this
object. It is not, however, at all strange that men should differ about
the best mode to accomplish so important a purpose; and especially
men in the circumstances in which we are placed. Those of us who come
from the Northern and Eastern States, where slavery exists not at all,
or but in a slight degree, would naturally view this subject in a very
different light from gentlemen who represent the Southern States, where
slavery always has existed, and that to a great extent. As great a degree
of unanimity as is possible is of much importance, both for the purpose
of effectually preventing this inhuman traffic, and for the honor and
reputation of our country.
The gentleman from Georgia (Mr. EARLY) has informed us repeatedly that
a law making this a capital offence cannot be executed in the Southern
States; that the importation of slaves has so long been familiar to them,
that a great majority of the people consider it not as an aggravated
crime, and a large portion of them as no crime at all; that if we make
such an offence capital; if we make the consequence of importing a cargo
of slaves to be the loss of life, no man will ever be prosecuted for
it, because no man will dare inform. All the gentlemen, sir, from the
Southern States, who have spoken on this subject, have told us that
they earnestly wish effectually to prevent the slave trade in future. I
am disposed to credit them fully. Indeed, I cannot conceive that they
should not sincerely and fervently wish to prevent a traffic, which,
if persisted in, must in all human probability, first or last, bring
upon them and their families the most tremendous calamities. If, then,
they view the subject in this light, if they are sincere in making
these declarations, there is not only no danger that the law will not
be executed, but they will unite to a man to execute the law; the whole
community will inform; a regard to their own lives, and the lives of
their posterity, will drive them to it. And if, sir, in the rigid
execution of this statute, its penalties fall upon men from the Eastern
States, who are profligate enough to engage in this inhuman trade, I most
heartily concur with my colleague in saying, let the law have its full
force, let it fall with all its force upon the offender; let him die.
The question being taken by yeas and nays, on striking out so much of the
first section as inflicts the punishment of death on owners and masters
of vessels employed in the slave trade, it was carried--yeas 63, nays 53,
as follows:
YEAS.--Willis Alston, jun., John Archer, Joseph Barker, Burwell
Bassett, Silas Betton, John Boyle, William A. Burwell, William
Butler, George W. Campbell, Martin Chittenden, John Claiborne,
Joseph Clay, George Clinton, jun., John Clopton, Orchard Cook,
Ezra Darby, John Dawson, William Dickson, Peter Early, James
Elliot, Caleb Ellis, Ebenezer Elmer, James Fisk, Isaiah L.
Green, William Helms, James Holland, David Holmes, John G.
Jackson, Walter Jones, Thomas Kenan, Nehemiah Knight, Edward
Lloyd, Patrick Magruder, Robert Marion, William McCreery,
David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah
Morrow, Gurdon S. Mumford, Thomas Newton, jun., John Randolph,
John Rhea of Tennessee, Jacob Richards, Peter Sailly, Thomas
Sanford, Martin G. Schuneman, Dennis Smelt, John Smith, Samuel
Smith, Henry Southard, Richard Stanford, Joseph Stanton, Samuel
Taggart, Samuel Tenney, Uri Tracy, Abram Trigg, Daniel C.
Verplanck, Robert Whitehill, Eliphalet Wickes, Nathan Williams,
Joseph Winston, and Thomas Wynns.
NAYS.--Evan Alexander, Isaac Anderson, David Bard, George M.
Bedinger, Barnabas Bidwell, John Blake, jun., Thomas Blount,
James M. Broom, Robert Brown, Levi Casey, John Chandler,
Matthew Clay, Frederick Conrad, Leonard Covington, Richard
Cutts, Samuel W. Dana, John Davenport, junior, Theodore Dwight,
Elias Earle, William Ely, John W. Eppes, William Findlay, John
Fowler, Edwin Gray, Andrew Gregg, Silas Halsey, Seth Hastings,
David Hough, John Lambert, Duncan McFarland, Josiah Masters,
John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Gideon
Olin, John Porter, John Pugh, John Rea of Pennsylvania, John
Russell, Thomas Sammons, Ebenezer Seaver, James Sloan, John
Smilie, Benjamin Tallmadge, David Thomas, Thomas W. Thompson,
Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, John
Whitehill, David R. Williams, Marmaduke Williams, and Alexander
Wilson.
The question on inserting, in lieu of what was stricken out, a clause
prescribing imprisonment for not more than ten, nor less than five years,
was carried without a division.
The amendments to the second and third sections were read and agreed
to, when, after several unsuccessful attempts to adjourn, the further
consideration of the subject was postponed till Friday--ayes 71--to which
day the House adjourned.
MONDAY, January 5, 1807.
Another member, to wit, MATTHEW WALTON, from Kentucky, appeared, and took
his seat in the House.
WEDNESDAY, January 7.
_Salt Duty._
Mr. J. RANDOLPH, from the Committee of Ways and Means, to whom was
referred, on the third ultimo, so much of the President’s Message as
relates “to a suppression of the duties on salt, to a continuation of the
Mediterranean fund, and to the state of our revenues,” presented a bill
repealing the acts laying duties on salt, and continuing in force, for a
further time, the first section of the act, entitled “An act further to
protect the commerce and seamen of the United States against the Barbary
Powers;” which was read twice, and committed to a Committee of the Whole
on Friday next.
FRIDAY, January 9.
Another member, to wit, MATTHEW LYON, from Kentucky, appeared, and took
his seat in the House.
MONDAY, January 12.
_Duties on Salt._
Mr. J. RANDOLPH moved that the House resolve itself into a Committee of
the Whole on the bill for “repealing the acts laying duties on salt, and
continuing in force the first section of an act, entitled an act further
to protect the commerce and seamen of the United States against the
Barbary Powers.”[45]
TUESDAY, January 20.
_Suspension of the Anti-slavery of the Ordinance of ’87 in Indiana._
The SPEAKER laid before the House a letter from William Henry Harrison,
Governor of the Indiana Territory, enclosing certain resolutions passed
by the Legislative Council and House of Representatives of the said
Territory, relative to a suspension, for a certain period, of the sixth
article of compact between the United States and the Territories and
States north-west of the river Ohio, made on the thirteenth of July, one
thousand seven hundred and eighty-seven; which were read, as follows:
_Resolved, unanimously, by the Legislative Council and House of
Representatives of the Indiana Territory_, That a suspension
of the sixth article of compact between the United States and
the Territories and States north-west of the river Ohio, passed
the 13th day of July, 1787, for the term of ten years, would
be highly advantageous to the said Territory, and meet the
approbation of at least nine-tenths of the good citizens of the
same.
_Resolved, unanimously_, That the abstract question of liberty
and slavery is not considered as involved in a suspension of
the said article, inasmuch as the number of slaves in the
United States would not be augmented by the measure.
_Resolved, unanimously_, That the suspension of the said
article would be equally advantageous to the Territory, to the
States from whence the negroes would be brought, and to the
negroes themselves.
To the Territory, because of its situation with regard to the
other States; it must be settled by emigrants from those in
which slavery is tolerated, or for many years remain in its
present situation, its citizens deprived of the greater part
of their political rights, and, indeed, of all those which
distinguish the American from the citizens and subjects of
other governments.
The States which are overburdened with negroes would be
benefited by their citizens having an opportunity of disposing
of the negroes which they cannot comfortably support, or
of removing with them to a country abounding with all the
necessaries of life; and the negro himself would exchange
a scanty pittance of the coarsest food for a plentiful and
nourishing diet, and a situation which admits not the most
distant prospect of emancipation, for one which presents no
considerable obstacle to his wishes.
_Resolved, unanimously_, That the citizens of this part of
the former North-western Territory consider themselves as
having claims upon the indulgence of Congress in regard to a
suspension of the said article, because at the time of the
adoption of the ordinance of 1787 slavery was tolerated, and
slaves generally possessed by the citizens then inhabiting
the country, amounting to at least one-half the present
population of Indiana, and because the said ordinance was
passed in Congress when the said citizens were not represented
in that body, without their being consulted, and without their
knowledge and approbation.
_Resolved, unanimously_, That, from the situation, soil,
climate, and productions of the Territory, it is not believed
that the number of slaves would ever bear such proportion to
the white population, as to endanger the internal peace and
prosperity of the country.
_Resolved, unanimously_, That copies of these resolutions be
delivered to the Governor of this Territory, to be by him
forwarded to the President of the Senate and to the Speaker
of the House of Representatives of the United States, with a
request that they will lay the same before the Senate and House
of Representatives, over which they respectively preside.
_Resolved, unanimously_, That a copy of these resolutions be
delivered to the delegate to Congress from this Territory,
and that he be, and he hereby is, instructed to use his best
endeavors to obtain a suspension of the said article.
The resolutions were referred to Mr. PARKE, Mr. MASTERS, Mr. RHEA of
Tennessee, Mr. SANFORD, Mr. ALSTON, Mr. JEREMIAH MORROW, and Mr. TRIGG,
to examine and report their opinion thereupon to the House.
MONDAY, January 26.
Another new member, to wit, WILLIAM W. BIBB, from Georgia, returned to
serve as a member for the said State, in the place of Thomas Spalding,
who has resigned his seat, appeared, produced his credentials, was
qualified, and took his seat in the House.
_Suspension of the Habeas Corpus._
A message was received from the Senate, by Mr. SAMUEL SMITH, as follows:
Mr. SPEAKER: I am directed by the Senate of the United States
to deliver to this House a confidential message, in writing.
The House being cleared of all persons except the members and the Clerk,
Mr. SMITH delivered to the SPEAKER the following communication in writing:
_Gentlemen of the House of Representatives_:
The Senate have passed a bill suspending for three months the
privilege of the writ of habeas corpus, in certain cases, which
they think expedient to communicate to you in confidence,
and to request your concurrence therein, as speedily as the
emergency of the case shall in your judgment require.
Mr. SMITH, also, delivered in the bill referred to in the said
communication, and then withdrew.
The bill was read as follows:
A Bill suspending the writ of Habeas Corpus for three months,
in certain cases.
_Be it enacted, by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That
in all cases, where any person or persons, charged on oath
with treason, misprision of treason, or other high crime or
misdemeanor, endangering the peace, safety, or neutrality
of the United States, have been or shall be arrested or
imprisoned, by virtue of any warrant or authority of the
President of the United States, or from the Chief Executive
Magistrate of any State or Territorial Government, or from any
person acting under the direction or authority of the President
of the United States, the privilege of the writ of _habeas
corpus_ shall be, and the same hereby is suspended, for and
during the term of three months from and after the passage of
this act, and no longer.
Mr. P. R. THOMPSON moved that the message and the bill received from the
Senate ought not to be kept secret, and that the doors be opened.
Mr. BURWELL and Mr. SMILIE spoke in support of the motion.
Mr. EARLY thought that a previous order should be taken to remove the
injunction of secrecy. To open the doors and admit strangers to hear the
debate, and yet continue the injunction of secrecy on members, would
present a singular spectacle.
Mr. J. RANDOLPH said they could not be bound to secrecy except by their
own vote. If there was any charm by which they could be bound, except
their own act, he wished it might be dissolved.
Mr. G. W. CAMPBELL hoped the usual course would be pursued; read the bill
a second time, and then refer it to a Committee of the Whole.
Mr. ALSTON thought the question, whether the bill should pass to a second
reading, first in order.
The SPEAKER decided that the motion to open the doors was in order, and
the question on that motion must first be taken.
The yeas and nays being demanded by one-fifth of the members present,
they were ordered to be taken.
The question then was put on the motion, _That the message and bill
received from the Senate ought not to be kept secret, and that the doors
be now opened_; and resolved in the affirmative--yeas 123, nays 3.
Mr. EPPES moved that the bill be rejected.[46] This motion was afterwards
withdrawn to give place to another motion, but with the idea of renewing
it again.
Mr. BURWELL said he was unacquainted with the particular reasons which
had induced the Senate to pass this bill. None had been assigned when
the bill was communicated, and no additional documents presented. He
could, therefore, only be governed by that information which the House
had received; and he believed that it would justify the motion before the
House. The President, in his Message of the 22d, says, “on the whole,
the fugitives from Ohio and their associates from Cumberland, or other
places in that quarter, cannot threaten serious danger to the city of New
Orleans.” If that be the case, upon what ground shall we suspend the writ
of habeas corpus? Can any person imagine the United States are in danger,
after this declaration of the President, who unquestionably possesses
more correct information than any other person can be supposed to have.
In another part of the Message, we are informed--
“That the persons arrested at New Orleans have been embarked
for some of the Atlantic ports, probably on the consideration
that an impartial trial could not be expected during the
present agitations of New Orleans, and that that city was not
as yet a safe place of confinement. As soon as these persons
shall arrive, they will be delivered to the custody of the law,
and left to such course of trial, both as to place and process,
as its functionaries may direct; the presence of the highest
judicial authorities to be assembled at this place within a few
days, the means of pursuing a sounder course of proceedings
here than elsewhere, and the Executive means, should the judges
have occasion to use them, render it equally desirable, for the
criminals as for the public, that being already removed from
the place where they were apprehended, the first regular arrest
should take place here, and the course of proceedings receive
here its proper direction.”
The President evidently holds out the idea, that the correct and proper
mode of proceeding can be had under the existing laws of the United
States. These persons may be transferred from the military to the civil
authority, and be proceeded against according to law. Those, therefore,
who fear the escape of the traitors already apprehended, and would, by
this measure, obviate the difficulty, must perceive that consequence
would not ensue. Mr. B. said he should consider the suspension of
the habeas corpus as holding out an idea of danger and alarm, which
was highly improper, inasmuch as it did not exist. It is true, this
conspiracy was once formidable, extensive, and threatening; but it has
been dissipated by the vigilance of Government. He would ask gentlemen,
if they seriously believed the danger sufficiently great to justify the
suspension of this most important right of the citizen, to proclaim the
country in peril, and to adopt a measure so pregnant with mischief, by
which the innocent and guilty will be involved in one common destruction?
He said this was not the first instance of the kind since the formation
of the Federal Government; there had been already two insurrections in
the United States, both of which had defied the authority of Congress,
and menaced the Union with dissolution. Notwithstanding one of them
justified the calling out of fifteen thousand men, and the expenditure
of one million of dollars, he had not heard of a proposition to suspend
the writ of habeas corpus. What, then, will be said of us, if now, when
the danger is over, firm in the attachment of the people to the Union,
with ample resources to encounter any difficulties which may occur, we
resort to a measure so harsh in its nature, oppressive in its operation,
and ruinous as a precedent? While, in former times, it was thought unsafe
to suspend this most important and valuable part of the constitution, he
would ask, whether the necessity at the present time could be considered
greater? With regard to those persons who may be implicated in the
conspiracy, if the writ of habeas corpus be not suspended, what will be
the consequence? When apprehended, they will be brought before a court of
justice, who will decide whether there is any evidence that will justify
their commitment for further prosecution. From the communication of the
Executive, it appeared there was sufficient evidence to authorize their
commitment. Several months would elapse before their final trial, which
would give time to collect evidence, and if this shall be sufficient,
they would not fail to receive the punishment merited by their crimes and
inflicted by the laws of their country.
Mr. B. said he could conceive no injury that would result on this score;
and, indeed, if some persons should elude justice, it would not endanger
society so materially as to come within the terms of the constitution.
He observed, it appeared to him the commencement of an insurrection was
the only time when the writ of habeas corpus ought to be suspended;
when the seizure of the ringleaders, by dismaying the inferior agents,
would enable the Government, without the effusion of blood, to suppress
it. But it was manifest that, at this moment, every thing intended
by the conspirators was effected, or they were in the hands of the
civil authority; there was, therefore, no good reason to take this
precautionary step with that view; while on the one hand, it would
unavoidably produce unnecessary alarm, and much inconvenience to the
citizens of the United States. Nothing but the most imperious necessity
would excuse us in confining to the Executive, or any person under him,
the power of seizing and confining a citizen, upon bare suspicion, for
three months, without responsibility, for the abuse of such unlimited
discretion. Mr. B. said he could judge from what he had already seen,
that men, who are perfectly innocent, would be doomed to feel the
severity of confinement, and undergo the infamy of the dungeon. What
reparation can be made to those who shall thus suffer? The people of the
United States would have just reason to reproach their representatives
with wantonly sacrificing their dearest interests, when, from the facts
presented to this House, it seems the country was perfectly safe, and
the conspiracy nearly annihilated. Under these circumstances, there can
be no apology for suspending the privilege of the writ of habeas corpus,
and violating the constitution, which declares “the writ of habeas corpus
shall not be suspended, unless when, in cases of invasion or rebellion,
the public safety may require it.”
Mr. B. said he hoped he had shown that, admitting the two cases specified
in the constitution existed, they were not accompanied with such symptoms
of calamity as rendered the passage of the bill expedient.
What, in another point of light, would be the effect of passing such a
law? Would it not establish a dangerous precedent? A corrupt and vicious
Administration, under the sanction and example of this law, might harass
and destroy the best men of the country. It would only be necessary to
excite artificial commotions, circulate exaggerated rumors of danger,
and then follows the repetition of this law, by which every obnoxious
person, however honest, is surrendered to the vindictive resentment of
the Government. It will not be a sufficient answer, that this power will
not be abused by the President of the United States. He, Mr. B. believed,
would not abuse it, but it would be impossible to restrain all those who
are under him. Besides, he would not consent to advocate a principle bad,
in itself, because it will not, probably, be abused. For these reasons,
Mr. B. said, he should vote to reject the bill.
Mr. ELLIOT said that he regretted the motion to reject the bill had been
made, because, considering the subject of very great importance, he
thought it most proper that it should take the usual course of business,
that the bill should be read a second time, and referred to a Committee
of the Whole, for the purposes of deliberation and discussion.
Called upon, however, said Mr. E., to answer to the question, Shall
the bill be rejected? I must answer that question in the affirmative,
as I should deem it my duty to advocate its rejection in any form
which it might assume, and in any stage of its progress; and I deem it
equally my duty, on the present occasion, to express my sentiments upon
the subject. It is, indeed, difficult for me, consistently with the
sincere and high respect which I entertain for the source from whence
this measure originated, to express, in decorous terms, the hostility
which I feel to the proposition. I am therefore disposed to consider it
as an original proposition here; as a motion in this body to suspend,
for a limited time, the privileges attached to the writ of habeas
corpus. And, in this point of view, I am prepared to say that it is the
most extraordinary proposition that has ever been presented for our
consideration and adoption. Sir, what is the language of our constitution
upon this subject? “The privilege of the writ of habeas corpus shall
not be suspended, except when, in cases of invasion or rebellion, the
public safety shall require it.” Have we a right to suspend it in any and
every case of invasion and rebellion? So far from it, that we are under
a constitutional interdiction to act, unless the existing invasion or
rebellion, in our sober judgment, threatens the first principles of the
national compact, and the constitution itself. In other words, we can
only act in this case with a view to national self-preservation. We can
suspend the writ of habeas corpus only in a case of extreme emergency;
that alone is _salus populi_ which will justify this _lex suprema_. And
is this a crisis of such awful moment? Is it necessary, at this time,
to constitute a dictatorship, to save the people from themselves, and
to take care that the Republic shall receive no detriment? What is the
proposition? To create a single Dictator, as in ancient Rome, in whom
all power shall be vested for a time? No; to create one great Dictator,
and a multitude, an army of subaltern and petty despots; to invest, not
only the President of the United States, but the Governors of States
and Territories, and, indeed, all persons deriving civil or military
authority from the supreme Executive, with unlimited and irresponsible
power over the personal liberty of your citizens. Is this one of those
great crises that require a suspension, a temporary prostration of the
constitution itself? Does the stately superstructure of our Republic
thus tremble to its centre, and totter towards its fall? Common sense
must give a negative answer to these questions. What are the facts?
Is it, indeed, a case of rebellion? We are officially informed that
rebellion has reared its hydra front in the peaceful valleys of the West.
But we are also informed by the Executive that treason has no prospect
of success; that “the fugitives from the Ohio, and their associates
from Cumberland, cannot threaten serious danger even to the city of
New Orleans.” Not a single city, still less a Territory or a State, is
considered in danger; and the Executive, not only possesses all the
information which has been communicated to us, but much more, for we
are informed that the communication has been made under the reservation
contained in the resolution requesting it, and of course all the facts
in the knowledge of the Executive, which are decided to be improper
for disclosure at this time, have been kept back. And the Executive,
possessing all this information, assures us that the public safety is not
endangered. Can we, under these circumstances, consent to the investiture
of dictatorial powers in that department of the Government which thus
assures us that all is safe? It would be contrary to the spirit of the
constitution.
But we shall be told that the constitution has contemplated cases of this
kind, and, in reference to them, invested us with unlimited discretion.
When any gentleman shall advance such a position, we, who advocate the
rejection of the bill, will meet him upon that ground, and put the
point at issue. We contend that the framers of the constitution never
contemplated the exercise of such a power, under circumstances like the
present; and that the constitution itself, instead of authorizing, has
prohibited such discretion, unless in an extreme case. And can any member
lay his hand upon his heart and say, that the present is a case of that
description? He who cannot do this must, with us, consider the proposed
measure as unconstitutional.
Let us pay a little attention to the nature and character of the writ
of habeas corpus. It has its origin in Great Britain, and is there
considered in two great points of view, as it respects the monarch, and
as it respects the subject. As it respects the monarch, it is one of
the _jura prerogativa_, a writ of prerogative; but it is not considered
as calculated to increase the power of the king, or the splendor of the
throne; in its origin and true character it is viewed as a prerogative,
exercised by the king, or those authorities to whom his judicial powers
are supposed to be delegated, only for the purpose of securing the
constitutional rights of the subject, and restraining the invasion of
those rights. As it respects the subject, it is a writ of right, and is
emphatically called, by English writers, a writ of liberty.
By the provisions of the famous statute of Charles II., which has even
been called a second _magna charta_, its privileges are guarantied to all
British subjects at all times. An eminent English author, and the most
popular writer upon subjects of legal science, considers its suspension
as the suspension of liberty itself; declares that the measure ought
never to be resorted to but in cases of extreme emergency; and says that
the nation then parts with its freedom for a short and limited time, only
to resume and secure it for ever. Hence, he compares the suspension of
the habeas corpus act in Great Britain to the dictatorship of the Roman
Republic.
But objectionable as the bill upon the table is in point of principle,
it is, if possible, still more objectionable in point of detail. It
invests with the power of violating the first principles of civil and
political liberty, not only the supreme Executive, and the Executives of
individual States and Territories, but all civil and military officers
who may derive any authority whatever from the Chief Magistrate. And it
extends the operation of the suspension of the privileges of the habeas
corpus, not only to persons guilty or suspected of treason, or misprision
of treason, but, to those who may be accused of any other crime or
misdemeanor, tending to endanger the “peace, safety, or neutrality,” of
the United States! What a vast and almost illimitable field of power
is here opened, in which Executive discretion may wander at large and
uncontrolled! A vast and dangerous scene of power, indeed! It gives the
power of dispensing with the ordinary operation of the laws to a host
of those _little great men_, who are attached to every Government under
heaven. I wish not to reflect upon any of those subordinate officers who
may be employed by the Government of my country.
But no one will doubt that, in times of alarm and danger, many men
will be clothed with the functions of office, who are incompetent to
the discreet exercise of such boundless discretion. I can never wish
to see such persons invested with the means of aiming at the heads of
their private enemies, or other innocent and unoffending citizens, the
thunderbolts of public indignation, or scorching them with the lightning
of public suspicion. Says the poet:
“Could great men thunder, Jove would ne’er be quiet,
For every petty pelting officer
Would use his heaven for thunder.”
Let us again ask for evidence of the necessity of this measure? Certainly
none can be produced, for we are informed, from the first authority,
that if the present be not a time of profound peace, it is far from
being a period of public danger. The leader of this petty rebellion has
been called the modern Catiline. Undoubtedly, he possesses many of the
qualities which a celebrated ancient historian ascribes to the Catiline
of Rome: his genius, his address, his activity, his profligacy; but he
is destitute of his means and resources. He wants that power of doing
mischief which the Roman conspirator possessed. So far is he from being
able to make war upon his country, that he cannot take possession of a
single city. He is rapidly hastening to the same fate, although he may
not meet it in the same manner. Already is he “damn’d to everlasting
fame,” or rather, damned to everlasting infamy. Already is he a fugitive.
Already a price is set upon his head. In the papers of this morning,
we see that the Governor of Orleans has offered a reward for his
apprehension. We cannot but detest the traitor, but we can have no fears
of the consequences of the treason.
Mr. E. concluded, by expressing a hope that the bill would meet a decided
vote of rejection.
Mr. EPPES.--When I feel a decided hostility to a principle, it is not
material to me in what form I meet it. Decidedly opposed to the principle
of this bill, I shall vote against it in all its stages, and cannot but
hope that the motion of my colleague to reject it will prevail. By this
bill, we are called upon to exercise one of the most important powers
vested in Congress by the Constitution of the United States. A power
which suspends the personal rights of your citizens, which places their
liberty wholly under the will, not of the Executive Magistrate only, but
of his inferior officers. Of the importance of this power, of the caution
which ought to be employed in its exercise, the words of the constitution
afford irresistible evidence. The words of the constitution are: “The
privilege of the writ of habeas corpus shall not be suspended, unless
when, in cases of rebellion or invasion, the public safety may require
it.” The wording of this clause of the constitution deserves peculiar
attention. It is not in every case of invasion, nor in every case of
rebellion, that the exercise of this power by Congress can be justified
under the words of the constitution. The words of the constitution
confine the exercise of this power exclusively to cases of rebellion or
invasion, where the public safety requires it. In carrying into effect
most of the important powers of Congress, something is left for the
exercise of its discretion. We raise armies when, in our opinion, armies
are necessary. We may call forth the militia to suppress insurrection
or repel invasion, when we consider this measure necessary. But we can
only suspend the privilege of the habeas corpus, “when, in cases of
rebellion or invasion, the public safety requires it.” Well, indeed, may
this caution have been used as to the exercise of this important power.
It is in a free country the most tremendous power which can be placed
in the hands of a legislative body. It suspends, at once, the chartered
rights of the community, and places even those who pass the act under
military despotism. The constitution, however, having vested this power
in Congress, and a branch of the Legislature having thought its exercise
necessary, it remains for us to inquire whether the present situation
of our country authorizes, on our part, a resort to this extraordinary
measure.
The inquiry is confined within very narrow limits. The power can only
be exercised under the constitution, “when, in cases of rebellion or
invasion, the public safety may require it.” Our country is not invaded.
We have only, therefore, to inquire whether there exists in this country
a rebellion, and whether the public safety requires a suspension of the
habeas corpus. Of the existence of the rebellion or combination against
the authority of the United States there can be no doubt, as we have
on our table a detailed account of its origin and progress. I shall
confine my observations solely to the latter part; whether the public
safety requires a suspension of the habeas corpus for its suppression.
In the communication now on our table, from the Executive, we have been
informed that the militia of Ohio, Kentucky, and Tennessee, and of the
Mississippi and Orleans Territories, have been ordered out. That General
Wilkinson was at Orleans, on the 10th of December, with his troops
from the Sabine, which from other information we know to consist of one
thousand effective men. These are resources of the nation now in active
operation. What is the force of the conspirators? By the same documents,
we are informed that “some boats, accounts vary from five to double or
treble that number, and persons, differently estimated from one to three
hundred, had passed the falls of the Ohio to rendezvous at the mouth of
Cumberland river, with others expected down that river.” From the same
document it appears that the force which comes down Cumberland river
amounts to two boats, in one of which is Aaron Burr. From this statement,
it appears that the largest calculation as to the actual force of the
conspirators, is three hundred. But when we know the propensity of human
nature to magnify accounts of this kind, we may fairly infer that the
whole force does not exceed one hundred and fifty men. To oppose which,
we have one thousand regular troops, and the militia of Ohio, Kentucky,
and Tennessee, and of the Mississippi and Orleans Territories. Is there
a man present who believes, on this statement, that the public safety
requires a suspension of the habeas corpus? This Government has now
been in operation thirty years; during this whole period, our political
charter, whatever it may have sustained, has never been suspended. Never,
under this Government, has personal liberty been held at the will of a
single individual. Shall we, in the full tide of prosperity, possessed
of the confidence of the nation, with a revenue of fifteen millions of
dollars, and six hundred thousand freemen, able and ready to bear arms in
defence of their country, believe its safety endangered by a collection
of men which the militia of any one county in our country would be
amply sufficient to subdue? Shall we, sir, suspend the chartered rights
of the community for the suppression of a few desperadoes; of a small
banditti already surrounded by your troops; pressed from above by your
militia; met below by your regulars, and without a chance of escape, but
by abandoning their boats, and seeking safety in the woods? I consider
the means at present in operation amply sufficient for the suppression
of this combination. If additional means were necessary, I should be
willing to vote as many additional bayonets as shall be necessary for
every traitor. I cannot, however, bring myself to believe that this
country is placed in such a dreadful situation as to authorize me to
suspend the personal rights of the citizen, and to give him, in lieu
of a free constitution, the Executive will for his charter. I consider
the provision in the constitution for suspending the habeas corpus as
designed only for occasions of great national danger. Like the power of
creating a Dictator in ancient Rome, it prostrates the rights of your
citizens and endangers public liberty. Like that it may, on some very
extraordinary occasions, prove salutary, but like that, it ought never
to be resorted to but in cases of absolute necessity; or, to use the
emphatic language of the constitution, “when the public safety requires
it.” Believing that the public safety is not endangered, and that the
discussion of this question is calculated to alarm the public mind at a
time when no real danger exists, I shall vote for the rejection of the
bill in its present stage.
Mr. VARNUM said if he was of opinion with the gentlemen from Vermont
and Virginia, he should vote for the rejection of this bill; but he
entertained a different opinion, and, unless he heard something to
change it, he should vote differently from them. He did not believe
the constitution restricted the power of the Government to suspend the
privilege of the habeas corpus in cases where the country was shaken to
its centre. There were no expressions in it to justify this inference.
Its terms are: “The privilege of the writ of habeas corpus shall not be
suspended, except when, in cases of invasion or rebellion, the public
safety shall require it.” Will gentlemen deny that there exists in the
United States at present a rebellion? I presume not, said Mr. V., it is
too notorious to admit of doubt. Will they deny that the conspiracy has
been formed with deliberation, and has existed for a long time? Is it not
evident that it has become very extensive? If, then, this is the case,
and the head of the conspiracy has said that he is aided by a foreign
power; if this is true, are we justified in considering the country in
a perfect state of safety, until it is brought to a close? I conceive
not. I consider the country, in a degree, in a state of insecurity;
and if so, the power is vested in the Congress of the United States,
under the constitution, to suspend the writ of habeas corpus. I am
also apprehensive that we shall not be able to trace the conspiracy to
its source without such a suspension. We have had an instance in which
the head of the conspiracy has been brought before a court of justice,
and where nothing has been brought against him. It is not my wish to
insinuate that any court or public functionary is contemplated by this
conspiracy; yet it is possible that this may be the case, and the very
existence of the country may depend on tracing it to its source. I am not
disposed to advocate sanguinary punishments, but I think they ought to be
exemplary in regard to the chiefs of the conspiracy; for which purpose
we ought to adopt those measures which will lead to a full discovery of
those concerned in it. I am sensible that the Government of the United
States has not hitherto resorted to this measure; but I know a particular
State of the Union who did consider the measure necessary, in the case
of an insurrection which occurred within her limits; and I think it very
doubtful whether that insurrection would have so happily closed, if it
had not been for her suspension of the writ of habeas corpus. Have we had
any insurrection or rebellion in the United States like this? We have had
one insurrection in Massachusetts, but whence did it arise? Not from a
design to subvert the Government, but from the burden of taxes; taxes
which, perhaps, exceeded those laid in any country since the formation of
society. I do not mean, by these observations, by any means to justify
that insurrection, and, I believe, from the circumstances with which I
am acquainted, that the insurrection which took place in Pennsylvania
did not go to the subversion of the Government. But let us look at this
conspiracy. While the nation, from one extreme to the other, enjoys a
degree of prosperity and happiness unparalleled in any other nation, and
not a single individual within our limits has any reason to complain of
oppression, an insurrection is fomented, subversive of the Government
and destructive of the rights of the people. It appears to me that this
insurrection is the most aggravating of all insurrections which history
gives us an account of. There is not the least oppression or the least
pressure of circumstances, to induce any individual to rise up against
the Government of this country; and it consequently betrays the greatest
turpitude of mind in those who either lead or unite in it. For these
reasons, I think it ought to be traced to its source, and I think it very
doubtful whether this can be effected without, in the first instance,
suspending the habeas corpus. Will gentlemen say that any innocent man
will have a finger laid upon him, should this law pass? No; there is no
probability of it; it is scarcely possible. But, even if it be possible,
if the public good requires the suspension of the privilege, every man
attached to the Government and to the liberty he enjoys, will be surely
willing to submit to this inconvenience for a time, in order to secure
the public happiness. The suspension only applies to particular crimes,
the liberties of the people will not therefore be touched. I do think
a great responsibility will rest on this branch of the Legislature, in
case they refuse to pass this act. Suppose the head of this conspiracy
shall be taken in a district of country where no evidence exists of
the crime charged to him, and he shall consequently be set at liberty
by the tribunals of justice; where will the responsibility rest, but
upon this branch of the Legislature? It is too great for me, as an
individual member, to bear. I shall, therefore, vote for this bill,
under the impression that it will not have the injurious effects that
some gentlemen seem to apprehend; and that it will only more effectually
consign the guilty into the hands of justice.
Mr. R. NELSON.--As the motion to reject the bill meets my most hearty
approbation, and as I consider it involving a great national question,
I cannot reconcile it to my duty to give a silent vote on it. I shall,
however, in order to avoid an unnecessary consumption of the time of the
House, offer my remarks in as concise a compass as possible. I shall
first consider the nature of the writ of habeas corpus; afterwards
examine its effects, not only on the individual, but on the community at
large; taking into view the mode of proceeding under it, to show, as I
conceive, that no danger can ensue, on the refusal to pass this bill.
What is a writ of habeas corpus? It is a writ directing a certain person
in custody to be brought before a tribunal of justice, to inquire into
the legality of his confinement. If the judge is of opinion that the
confinement is illegal, the person will of course be discharged; if,
on the contrary, from the evidence, he shall be of opinion that there
is sufficient grounds to suspect that he is guilty of offence, he will
not be discharged. Now, to me, it appears that this is a proper and
necessary power to be vested in our judges, and that a suspension of
the writ of habeas corpus is, in all cases, improper. If a man is taken
up, and is denied an examination before a judge or a court, he may,
although innocent in this case, continue to suffer confinement. This, in
my opinion, is dangerous to the liberty of the citizen. He may be taken
up on vague suspicion, and may not have his case examined for months, or
even for years. Would not this bear hard upon the rights of the citizen?
Let us turn over a leaf, and see how the Government stands. If the person
accused is legally committed, or if it shall be proved that he has
committed any offence, the judge will say that he shall not be released.
If he has committed an offence, there can be no grounds for this
suspicion, because, without such suspension, he will not be discharged,
because it does not follow that, inasmuch as a man has a right to demand
that he be brought before a judge by a writ of habeas corpus, he shall
therefore be discharged. He is only bound to examine him, and if he finds
there is strong reason to believe he has committed a crime, he may remand
him to confinement.
This is a writ of right, which ought to exist under all governments on
earth. What right? The right of being examined by the tribunals of his
country, to determine whether there is any ground for the deprivation
of his liberty. Is this a right which ought to be suspended merely to
gratify the apprehensions of gentlemen? I think not. The framers of the
constitution have said: “the privilege of the writ of habeas corpus
shall not be suspended, except when, in cases of invasion or rebellion,
the public safety shall require it.” Well, but, says the gentleman from
Massachusetts, can any one deny that this is a rebellion? It may perhaps
be, but I think it does not deserve the name of a rebellion; it is a
little, petty, trifling, contemptible thing, led on by a desperate man,
at the head of a few desperate followers: a thing which might have been
dangerous, if the virtue of the people had not arrested and destroyed
it. But admit that it is a rebellion; will every rebellion justify a
suspension of the writ of habeas corpus? The constitution says: “the
privilege of the writ of habeas corpus shall not be suspended, except
when, in cases of invasion or rebellion, the public safety shall require
it.” Does, then, the public safety require this suspension? Does the
constitution justify it? And, under present circumstances, confining a
man in prison without a cause. There is no danger, the enemy is not at
our door; there is no invasion; and yet we are called upon to suspend the
writ of habeas corpus. This precedent, let me tell gentlemen, may be a
ruinous, may be a most damnable precedent--a precedent which, hereafter,
may be most flagrantly abused. The Executive may wish to make use of more
energetic measures than the established laws of the land enable him to
do; he will resort to this as a precedent, and this important privilege
will be suspended at the smallest appearance of danger. The effect will
be, that whenever a man is at the head of our affairs, who wishes to
oppress or wreak his vengeance on those who are opposed to him, he will
fly to this as a precedent; it will truly be a precedent fraught with the
greatest danger; a precedent which ought not to be set, except in a case
of the greatest necessity; indeed, I can hardly contemplate a case in
which, in my opinion, it can be necessary.
In my opinion, this is a measure which ought never to be proposed, unless
when the country is so corrupt that we cannot even trust the judges
themselves. This, I consider the cause of the frequent suspension of
this privilege in England. Whenever the whole mass of society becomes
contaminated, and the officers of the judicial court are so far corrupted
as to countenance rebellion, and release rebels from their confinement,
it may be then time to say, they shall no longer remain in your hands;
we will take them from you. But I apprehend there is no such danger
here, and I repeat it, we are at once creating one of the most dangerous
precedents, and passing one of the most unjust acts that was ever
proposed.
Mr. SLOAN.--At the same time that I express my purpose to vote on the
same side with the gentleman from Maryland, I shall take the liberty of
assigning very different reasons for my vote from those offered by him.
The gentleman from Virginia has mentioned two preceding insurrections,
which he considers of much greater magnitude than this. I am of a
different opinion. Compared to this, I consider them as only a drop
to the bucket. For a moment, let me ask the attention of gentlemen to
those insurrections, or as I think they might, with more correctness, be
termed, oppositions to Government. In consequence of certain citizens
thinking themselves aggrieved by certain acts, in which they have been,
in some measure, justified by their subsequent repeal, a handful of
people raised in opposition to their execution. What analogy do those
oppositions bear to this rebellion? I consider the late or present
conspiracy to be of greater magnitude than any we know of in history.
Under what authority has it been created? Under that of a man of great
abilities and experience, who states that he expects encouragement from
foreign nations. I do not pretend to say that this is a fact; but what
has he done? Has he not drawn resources from every part of the Union? I,
therefore, consider it of great magnitude, and it is certainly excited
against the best government on earth, under which the people enjoy the
greatest happiness. I shall, however, vote against the bill, under the
belief that we may confidently rely on the love and affection of the
people for their Government, to which we are already probably indebted
for its suppression. Had this measure been brought forward a month or six
weeks ago, I should have voted for it.
Mr. BIDWELL said, although he was not satisfied of the necessity of
passing this bill, he was not prepared to reject it, in its present
stage. As it had received the sanction of the Senate, he was disposed to
treat it as a subject worthy of discussion and deliberation, by referring
it in the usual course, to a Committee of the whole House. Before the
passing of any bill of this nature, the House ought to have satisfactory
proof that a rebellion in fact existed, (for there was no pretence of
an invasion,) and that the public safety required a suspension of the
privilege of habeas corpus. By the terms of the constitution, both of
these pre-requisites must concur, to authorize the measure. The first
inquiry would naturally turn upon the existence of a rebellion. On
that point he had no doubt. To constitute a rebellion, in the sense
of the constitution, he did not think it necessary that a battle
should have been fought, or even a single gun fired. If troops were
enlisted, assembled, organized, and armed, for the purpose of effecting
a treasonable object, it amounted to actual rebellion. Such was the
existing state of things. The public notoriety of the fact was, perhaps,
sufficient evidence for the Legislature to act upon, if necessary; but
they had also the official statement of the President to that effect.
He had, therefore, no doubt of the existence of a rebellion, and that,
too, of a more wanton and malignant character than any insurrection which
had heretofore been raised against our Government; for it had not been
occasioned by any grievances, real or imaginary, but must have originated
in motives of personal ambition, or some more unworthy passion.
An existing rebellion, however, even of this aggravated description,
was not alone sufficient to justify a suspension of the writ of habeas
corpus. To bring it within constitutional justification, it must be
required by the public safety. That was a matter of opinion, rather than
of fact. He was convinced that the proposed suspension was not requisite
for the purpose of suppressing the conspiracy; for by the vigilance
and energy of our Executive Government, seconded and supported by the
exertions of particular States and Territories, and the army, this deep
laid conspiracy was already in a good measure suppressed, and he trusted
the means now in operation would complete the suppression. A suspension
of the habeas corpus could not be necessary, except for the detection
and conviction of the conspirators. A thorough investigation ought
undoubtedly to be made. If any persons concerned in the conspiracy were
arrested in situations which precluded an immediate production of such
evidence as would warrant their confinement, justice would require that
they should be detained until the proper evidence could be procured; but
in the mean time they might be discharged by virtue of a habeas corpus;
for, though he agreed with the gentleman from Maryland, (Mr. NELSON,)
in the importance and utility of this writ, he could not subscribe to
the doctrine which he understood that gentleman to maintain, that it
would entitle a person to a discharge only for causes of irregularity
in the arrest. Want of legal evidence to show, by oath or affirmation,
probable cause for detention, would be a ground of discharge. In ordinary
cases, indeed, the release and escape of a guilty person, for such want
of evidence, was esteemed a smaller evil than a denial of the common
privilege. If it were so in respect to this conspiracy, there was, in his
opinion, no good reason for passing this bill. That was a point which
appeared to him worthy of some deliberation.
It had been mentioned in the debate, that in the whole history of our
Government, notwithstanding two insurrections, the habeas corpus had, in
no instance, been suspended. It was true. But an instance had been cited
from one of the States. During the insurrection in Massachusetts there
was such a suspension, in pursuance of a constitutional provision; and it
was generally acknowledged to have been a necessary and salutary measure.
He had never understood that it was abused, or that it was considered by
the people of that State, a dangerous example. It was justified by the
occasion. But it did not, therefore, follow, that a similar suspension
would be justifiable on this occasion. That must depend on the present
state and circumstances of the nation. Although a rebellion existed, he
was not satisfied that the public safety required so strong and severe
a measure. But, as it was an important question, on which the House had
not yet taken time to deliberate, he was willing that the bill should
go, according to the usual course of proceeding, to a Committee of the
Whole; and therefore, he should not give his vote for rejecting it in the
present state.
Mr. J. RANDOLPH.--I shall give my vote in a very different manner from
the gentleman who has just sat down. I was extremely happy to witness
the very prompt and decided opposition this measure received in the
House, and from the quarter whence that opposition originated; and I
subscribe with great pleasure to the sound constitutional doctrine,
which the gentleman from Pennsylvania advanced this morning before our
doors were opened. We are now told that to reject this bill at its first
reading, will be to depart from the usual course of proceeding in this
House, and an attempt is made to enlist the feelings of members so far
at least as to permit the bill to progress one step farther, that we
may avoid violating that decorum which ought to be observed between
the two Houses. I do not, however, consider the subject in this light.
I conceive, on the contrary, it is as competent to us to reject the
bill on its first as on any other reading. I well recollect that about
eight years ago an important bill was smuggled through the House by this
fastidious mode of proceeding. Gentlemen were allured from their honest
opinions, and finally, by finesse and management, the bill was carried
through the House. I understand that this course is pursued by the other
branch of the Legislature on bills carried from this House; and I believe
it will be found that with regard to the passage of bills between the
two Houses, the course of procedure on the part of this House is more
liberal than that pursued by the other. For I do not recollect a single
instance in which the vote of a single member can stop the passage of a
bill in this House received from the other branch of the Legislature. I,
therefore, feel no scruples on this score. I think it just as well to
say, that we will permit this bill to pass to a second or third reading,
as to say that though we are opposed to the principle contained in a
resolution which may originate in this House, we nevertheless permit a
committee to bring in a bill to carry it into effect, because we may
destroy the bill at its last stage. This appears to be a strange course
of reasoning. It is like permitting yourselves to be bound in chains that
you may be loosed again, or going into prison that you may afterwards
come out. Gentlemen talk of the propriety of discussing this subject,
but when a subject is so clear that every man has made up his mind upon
it, where is the need of discussion? If it is not so clear, will any
gentleman say that the discussion now had, in which every member has a
right to speak twice, which is once more in my opinion than is necessary,
will not be sufficient to develope all the merits and demerits of the
bill? Will gentlemen undertake to say, if every member shall give the
mature, or as it may be, crude suggestions of his mind, that the subject
will not be sufficiently discussed, and lead to the formation of a
correct judgment? I believe it will. And therefore, on this ground, a
bill may as well be decided in its present stage as before a Committee of
the Whole.
Some gentlemen, to whom I have listened with considerable gratification,
tell us that, out of respect to the other branch, we ought not at this
time to reject the bill. I, however, feel no such respect on this
occasion, and shall express none. On the contrary, I am free to declare,
that when a measure, tending to impose a burden on the people, or to
detract from the privileges of the citizen, comes from that quarter, I
shall always view it with jealousy. The inequality of the representation
in that branch, the long tenure of office, and the custom with which
they are so familiar of conducting their proceedings in conclave,
(the House will recollect how long it was after the adoption of the
constitution before the public could get admission into their twopenny
gallery,) render all their proceedings touching the public burdens, or
the liberties of the people, highly suspicious. And to say the truth, I
am not at all surprised that they did close their doors on this occasion,
that they might not be under the inspection of the public eye, while
they were passing the bill on the table. I say so, because I am willing
to abide by the good old principle of judging all men by myself; and if
I had introduced such a bill, I should have been glad, my name did not
appear on the Journals, that the public might not know to whom they were
indebted for such a precedent.
I have another objection to the bill, besides that of the quarter from
which it originated, or the manner in which it has been presented to the
House. It appears to my mind like an oblique attempt to cover a certain
departure from an established law of the land, and a certain violation
of the Constitution of the United States, which we are told have been
committed in this country. Sir, recollect that Congress met on the first
of December, that the President had information of the incipient stage
of this conspiracy about the last of September--that the proclamation
issued before Congress met, and yet that no suggestion, either from
the Executive or from either branch of the Legislature, has transpired
touching the propriety of suspending the writ of habeas corpus until
this violation has taken place. I will never agree in this side-way
to cover up such a violation, by a proceeding highly dangerous to the
liberty of the country, or to agree that this invaluable privilege shall
be suspended, because it has been already violated, and suspended, too,
after the cause, if any there was, for it has ceased to exist. No; I
wish to be true to those principles which I have constantly maintained,
and, God willing, ever will maintain so long as I have a seat on this
floor, or have life. It has heretofore been the glory of those with
whom I have acted, that in all our battles we have combated for the
principles of the constitution and the laws of our country, in the
persons of those in whom they have been attempted to be violated, however
infamous and contemptible. When those principles were prostrated under
the sedition law, what did we say? That the character of the man accused
could not change the laws of the land, or impair his rights--that we
would support the constitutional rights of the citizen, in the person
of the meanest reptile, as well as in the persons of those who occupy
the highest stations in society. We have done so--let us continue to do
so, regardless of popular clamor or odium, and we shall still continue
to find ourselves on true ground. We never inquired what kind of a man
Callender was--we said, such is the law and the constitution; let justice
take its course. I could quote other examples equally strong, but in
deference to the feelings of the House I shall desist from doing it.
I beg pardon for detaining the House so long. I will, however, endeavor
to express the remaining ideas I have to offer in a few words. There is
another consideration which renders this bill highly objectionable. I
consider the case as now at issue, whether the United States is under a
military or civil government, or, in other words, whether the military
government is subject to the civil power, or the civil authority to the
military. I conceive that a case has occurred, in which the military has
not only usurped the civil authority, but in which it has usurped nothing
short of omnipotent power; and I consider this bill as calculated to give
a softening and smoothing over to this usurpation; and on this ground I
cannot assent to it. Suppose this bill either to pass or not to pass,
what has been the practice under the constitution? By the expression,
under the constitution, I do not mean conformably to it. Men have been
taken up by a military tribunal, and have been transported contrary to
law. I say transported, for if a man can be transported from the district
where the offence with which he is charged was committed, he may also
be deported to Cayenne, or transported to Botany Bay. And even you
yourself, (addressing the Speaker,) if such acts be sanctioned by this
bill, in your passage from this House to your lodgings, may be arrested,
put on board a vessel and carried whithersoever the military authority
may choose. To this I will never give my consent. It has been very well
remarked by my colleague, that this is not the first case in which an
insurrection has occurred in the United States, but that it is the first
case in which an attempt has been made to suspend the precious privilege
of the writ of habeas corpus.
I put it to any man, whether, now that we have received information of
the extent of this conspiracy, and when we find that Catiline, Cethegus,
and Lentulus, have not as many brother conspirators as themselves, this
conspiracy is equal to that in Pennsylvania in 1794 or 1795? In physical
force it is not comparable to it, however in intellectual talent it may
be. I conceive then that according to the Constitution of the United
States, there is but one case in which the writ of habeas corpus can be
suspended, and I should not go into this view of the subject, if it had
not been misstated by all those who have preceded me in the debate. My
view of the subject is this--that this privilege can only be suspended
in cases in which not merely the public safety requires it, but that
the case of the public safety requiring it, must be united with actual
invasion or actual rebellion. Now, with whatever epithets gentlemen may
dignify this conspiracy, I am not even of the opinion of the gentleman
from Maryland (Mr. R. NELSON)--I think it nothing more nor less than
an intrigue--and I am happy that I can declare on the honor, not of a
soldier, but of a citizen, that I believe it to be a foreign intrigue,
availing itself of domestic materials for answering its purposes, and
poor indeed must be the soil of this, or of any other state of society,
which would not furnish such materials.
A gentleman from Massachusetts has stated to the House that the
organization and administration of the Government, at this time, forbids
the apprehension of any abuse being made of the powers delegated under
this law. Surely, sir, the gentleman could not mean to urge this as any
thing new. He must have known, if he had consulted history--as doubtless
he has--that the king _de facto_, and the administration _de facto_,
are always above suspicion. That there never was a proposition brought
forward, that did not find a majority ready to say, There is surely no
danger of any improper use of this power in our time, for we are all
honorable men, and we would not delegate it, if an improper use could
be made of it; and that, if we reject a measure, we ought not to do it
so much on account of ourselves, as on account of those who come after
us. And what will those who come after us say of us? They will follow
our example, and declare that the character of their forefathers was
above every doubt and every suspicion. Now, for myself, I beg leave
to be permitted to disclaim every argument of this kind. I do not,
indeed, consider it fair to introduce such an argument. Let us take
up the question on its own merits and demerits, without any allusion
or reference to our own virtues, or the degeneracy of posterity. For
myself, I have no hesitation in saying that I will not grant this power
at any time, except under the most imperious necessity; and I say this
without any disrespect to this honorable body, or to any of the public
functionaries. Take man as he is, and in his best estate, you find him
an animal prone to abuse and corruption. There does not exist a single
constitution or law in the world, that does not enforce this salutary
truth.
I shall consider this bill, if it passes, as establishing a new era in
the Government. When I was a boy, I recollect to have consulted such
chronological tables as I could get access to. I recollect to have read,
that at a certain time, monarchy was abolished in Rome; a little while
after, the first Dictator was named; then the second Dictator--and I
believe, as in a case of apoplexy, she scarcely got over the third fit.
I believe a suspension of the writ of habeas corpus might have, here,
the same effect as the establishment of the first Dictatorship at Rome.
In what situation would it place yourselves and the citizens of this
country? It would leave them at the mercy, not merely of a justice of
the peace, but at the mercy of every subaltern officer of the army and
navy. I believe it would comport as much with the safety and interest
of this confederacy to give us power to send these people off, as to
put this power in their hands. I believe we should be as trustworthy as
they. And, let me ask, what compensation to an innocent man, to a man of
honor and feeling, to a man of character, who should be tied neck and
heels and sent off to New Orleans, and who should ultimately be proved
to be innocent--I ask what compensation it would be to him to bring an
action of damages? Against whom? A man without visible property? And what
action? An action on the most mercenary principle. To be indemnified
in his fame by dollars and cents. The injury would be irreparable. At
present, all stand under the law. If any one offend, let him be brought
under it. But, in this way, to put a man in an oyster boat, or skipper,
and transport him to a distance from the place of his arrest, and then
say he shall have a remedy, in case of his innocence, against an inferior
officer, is absurd. If we pass such a bill, which God forbid! it should
contain a large appropriation, and Government should be obliged to make
good the injured party--to afford him redress. I say they should grant
a large appropriation, for it is not for men with epaulets and gold
buttons to make reparation. If the bill passes, we are told it will be
but temporary. Why, the Sedition law was but temporary; and I think,
sir, (alluding to the Speaker,) you were one of those who aided its
passage--much against your will--by being present at the altar when it
was more than once re-enacted. As to its three months continuance, I
consider that as one of the most objectionable features of the bill--as
a bait to the trap; as the entering wedge. If it is made reconcilable to
the interests and feelings of this House to pass it for three months, do
you think we will then feel the same lively repugnance to it that we now
do? No! It has been truly said, that no man became perfectly wicked at
once; and it may be affirmed, with equal truth, that a nation is never
enslaved at once. Men must be initiated by degrees, and their repugnance
must be gradually overcome. Let me state a case. It is proposed to extend
the time of service of the Executive Magistrate from four, to five, or
eight years, or for life. If it be prolonged for a term, do you believe
we shall stop at its expiration? No! Once extended for life, he will then
claim the power to choose his successor, and the hereditary principle
will follow. This is the old trick. Let me, however, tell gentlemen that
old birds are not to be caught with chaff, though, unfortunately for
them, the mass of mankind does not consist of old birds. Pass one other
law, and I would quit the country. A twin brother to this same bill was
introduced into the British Parliament in 1794; and that bill to prevent
seditious assemblies, was brought forward for about as good reasons as
this. According to it, if four or five persons assembled, and refused on
the notice of a magistrate, to disperse, they were considered guilty of
sedition, and were dispersed by force. These two bills form a complete
tyranny--and tyranny of the most odious kind, because established under
the mask of liberty. Was the tyranny of Robespierre less intolerable,
oppressive, or odious, because inflicted in the name of the people,
than a like tyranny in Turkey, under the Grand Seignor and his Muftis?
Take one other thing along with you. These two fatal wounds, inflicted
on the liberties of the English nation, were inflicted by the man who
came forward in the character of a reformer--by the man who came forward
as the advocate of a Parliamentary reform; from which circumstance he
acquired that popularity which enabled him to inflict those deadly wounds
on the liberty of his country.
Having said so much with regard to the principle, permit me to add one
word on the details of the bill. There is a departure in it from the
known, accustomed, and received language of the constitution, in the
use of the word “authority.” The words are “warrant or authority.” The
expression is, in my opinion, too lax. Perhaps, we may be told, that
the bill may be amended on the third reading. But my objection to the
principle contained in it is such, that I will not consent to carry to
a third reading that which under no amendment can be rendered palatable
to my taste. Mr. R. concluded by observing that he had so far exhausted
himself that he was unable to go on.
Mr. SMILIE.--I shall not detain the House long by the remarks which I
propose to make on this subject. I shall waive all observations on the
mode of proceeding on this occasion--whether we shall reject the bill on
its first, or suffer it to go to a second reading. The question is now
put, and I am called upon to give my vote, either in the affirmative or
negative. I, therefore, feel under a necessity to put my negative upon
it. I consider this one of the most important subjects upon which we
have been called to act. It is a question which is neither more nor less
than, whether we shall exercise the only power with which we are clothed,
to repeal an important part of the constitution? It is in this case
only, that we have power to repeal that instrument. A suspension of the
privilege of the writ of habeas corpus is, in all respects, equivalent
to repealing that essential part of the constitution which secures that
principle which has been called, in the country where it originated,
the “palladium of personal liberty.” If we recur to England, we shall
find that the writ of habeas corpus in that country has been frequently
suspended. But, under what circumstances? We find it was suspended in
the year 1715, but what was the situation of the country at that time?
It was invaded by the son of James II. There was a rebellion within the
kingdom, and an army was organized. The same thing happened in the year
1745. On this occasion it was found necessary to suspend it. In latter
times, when the Government had grown more corrupt, we have seen it
suspended for an infinitely less cause. We have taken from the statute
book of this country, this most valuable part of our constitution. The
convention who framed that instrument, believing that there might be
cases when it would be necessary to vest a discretionary power in the
Executive, have constituted the Legislature the judges of this necessity,
and the only question now to be determined is, Does this necessity exist?
There must either be in the country a rebellion or an invasion, before
such an act can be passed. I really doubt whether either of these exist.
I really doubt whether a single law of the United States has been, as
yet, violated. I will not say this is the fact; but I do not know any
thing to prove the contrary. But, supposing that a rebellion does exist,
we are then left at liberty to decide whether it is such a one as to
endanger the peace of society to such a degree that no ordinary remedy
will answer. If an ordinary remedy will not, it may be our duty to apply
an extraordinary one. What is this mighty business? What is the opinion
of the Executive as to its danger? Does he consider it dangerous? It is a
little remarkable that, in every instance under the British Government,
the proposition of such a measure originated with the Executive, while
here, without any intimation of danger from the Executive, we propose,
on our own suggestion, to suspend one of the most valuable privileges
that is secured to the citizen. Let us attend to the communication of the
President on this subject. He states that, according to his information,
the persons concerned in the conspiracy depend on receiving two kinds of
aid; foreign aid, and aid derived in their own country. After giving his
opinion of the foreign aid expected, he says:
“On the whole, the fugitives from the Ohio, with their
associates from Cumberland, or any other place in that quarter,
cannot threaten serious danger to the city of New Orleans.”
The President declares that, in his opinion, there is no danger to be
apprehended. With regard to foreign force, he states his reasons for
thinking there is no danger. As the Message is in the hands of every
gentleman, there can be no necessity for me to read it. But he explicitly
declares, from the state of our relations with other nations, there can
be no danger from that quarter. This being the deliberate opinion of the
Executive Magistrate, who is more deeply responsible on this occasion
than any other member of the Government, is it not most extraordinary
that we should attempt to take steps which can only be justified in the
last resort? Are gentlemen aware of the danger of this precedent? This
is the first attempt ever made under the Government to suspend this
law. If we suspend it when the Executive tells us there is no danger,
on what occasion may it not be suspended? Let us suppose that it shall
be suspended on this occasion, what will be its effect? Parties will
probably for ever continue to exist in this country. Let us suppose a
predominant party to conjure up a plot to avenge themselves. Do not
gentlemen see that the personal liberty of all their enemies would be
endangered? I mention this to forewarn gentlemen of the dangerous ground
before them. I do not say that our country may not, at some future day,
be in such a situation as to justify such a suspension, but I have never
yet seen her in such a situation, and, at this moment, I think it does
not exist. When we see the great body of the people so firmly attached
to their Government, ought we to be thus alarmed on beholding a few
desperate and unprincipled men attempting to stir up an insurrection?
There is another consideration which will induce me to give my hearty
negative to this bill. If foreign nations see that we are obliged, under
such circumstances, to suspend the writ of habeas corpus, will it not
show that the constitution is incapable of supporting itself, without the
application of the most dangerous and extraordinary remedies?
Mr. DANA.--I understand that the question is, whether the bill shall
be rejected on its first reading, without passing through the ordinary
forms of proceeding. In such cases, the ordinary question is, Is there
any thing in the bill proper for the House to deliberate upon? If they
are of opinion that it can be modified in such a way as to ensure its
passage, it ought to go to a Committee of the Whole. This was my opinion
when the motion was first made to reject the bill. I was disposed to vote
against the question, although the bill went to repeal the constitution.
I have been accustomed to view the privilege of the writ of habeas corpus
as the most glorious invention of man. I was notwithstanding, however,
from a respect to the other branch of the Legislature, disposed to
investigate the subject--to examine whether there was any necessity for
it. As, on the one hand, I was inclined to believe that the judgment of
the Senate had, on this occasion, been tinged by a strong abhorrence of
rebellion; so I was willing, on the other, to take time to guard myself
against an equally strong feeling of abhorrence of dictators. But, on
one principle, I cannot agree to consider this bill as a proper subject
of investigation, for one moment. I perceive, on further examination
of the bill, that the Senate have provided for its suspension in cases
where persons have been already presented. Had it been confined to
future arrests, I might have agreed to deliberate on it, but viewing it
in the light of an _ex post facto_ law, I must give it my instantaneous
negative. There is another principle which appears to me highly
objectionable. It authorizes the arrest of persons, not merely by the
President, or other high officers, but by any person acting under him.
I imagine this to be wholly without precedent. If treason was marching
to force us from our seats, I would not agree to do this. I would not
agree thus to destroy the fundamental principles of the constitution, or
to commit such an act, either of despotism or pusillanimity. Under this
view of the subject, I am disposed to reject the bill, as containing a
proposition on which I cannot deliberate.
The yeas and nays were then taken on the question, “Shall the bill be
rejected?”--yeas 113, nays 19, as follows:
YEAS.--Willis Alston, jr., Isaac Anderson, David Bard, Joseph
Barker, Burwell Bassett, George M. Bedinger, Silas Betton,
William W. Bibb, Phanuel Bishop, John Blake, jr., Thomas
Blount, James M. Broom, Robert Brown, John Boyle, William A.
Burwell, William Butler, George W. Campbell, John Campbell,
Martin Chittenden, John Claiborne, Joseph Clay, Matthew Clay,
George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard
Covington, Samuel W. Dana, Ezra Darby, John Davenport, jr.,
John Dawson, Theodore Dwight, Peter Early, James Elliot, Caleb
Ellis, Ebenezer Elmer, William Ely, John W. Eppes, William
Findlay, James Fisk, John Fowler, James M. Garnett, Charles
Goldsborough, Peterson Goodwyn, Edwin Gray, Andrew Gregg, Silas
Halsey, John Hamilton, Seth Hastings, James Holland, David
Holmes, David Hough, John G. Jackson, Walter Jones, James
Kelly, Thomas Kenan, John Lambert, Joseph Lewis, jr., Henry
W. Livingston, Edward Lloyd, Matthew Lyon, Duncan McFarland,
Patrick Magruder, Robert Marion, William McCreery, David
Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow,
John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Roger Nelson,
Thomas Newton, jr., Timothy Pitkin, jr., John Porter, John
Pugh, Josiah Quincy, John Randolph, Thomas M. Randolph, John
Rea of Pennsylvania, John Rhea of Tennessee, John Russell,
Peter Sailly, Thomas Sammons, Martin G. Schuneman, Ebenezer
Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith,
Samuel Smith, Richard Stanford, Joseph Stanton, William
Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge,
Samuel Tenney, Philip R. Thompson, Thomas W. Thompson, Uri
Tracy, Abram Trigg, Philip Van Cortlandt, Killian K. Van
Rensselaer, Peleg Wadsworth, John Whitehill, Robert Whitehill,
David R. Williams, Marmaduke Williams, Alexander Wilson, Joseph
Winston, Richard Wynn, and Thomas Wynns.
NAYS.--Evan Alexander, John Archer, Barnabas Bidwell, John
Chandler, Richard Cutts, Elias Earle, Isaiah L. Green, William
Helms, Josiah Masters, Gurdon S. Mumford, Gideon Olin, Thos.
Sanford, Henry Southard, David Thomas, Joseph B. Varnum, Daniel
C. Verplanck, Matthew Walton, Eliphalet Wickes, and Nathan
Williams.
MONDAY, February 2.
_Death of the Representative, Levi Casey, Esq._
Mr. THOMAS MOORE, a member of this House for the State of South Carolina,
informed the House of the death of his colleague, General LEVI CASEY,
late one of the members of the said State in this House: Whereupon,
_Resolved, unanimously_, That a committee be appointed to take order for
superintending the funeral of General LEVI CASEY, late a Representative
from the State of South Carolina.
_Ordered_, That Mr. THOMAS MOORE, Mr. EARLE, Mr. D. R. WILLIAMS, Mr.
MARION, Mr. EARLY, and Mr. HOLLAND, be appointed a committee, pursuant to
the said resolution.
_Resolved, unanimously_, That the members of this House will testify
their respect for the memory of General LEVI CASEY, late one of their
body, by wearing crape on the left arm for one month.
On motion of Mr. HOLLAND,
_Resolved, unanimously_, That the members of this House will attend the
funeral of the late General LEVI CASEY this day, at one o’clock.
_Resolved, unanimously_, That a message be sent to the Senate to notify
them of the death of General LEVI CASEY, late a member of this House, and
that his funeral will take place, this day, at one o’clock.
THURSDAY, February 5.
_National Defence._
GUNBOATS.
The House resumed the consideration of the unfinished business of
yesterday, being the report of a committee on fortifying our ports and
harbors.
The question was taken on the amendment offered by Mr. VAN CORTLANDT,
which was disagreed to--ayes 51, noes 54.
The question then recurred on filling the blank in the 2d resolution with
“$250,000,” for building fifty gunboats.
Mr. MUMFORD.--I hope a majority of this House will agree to strike out
the whole resolution respecting gunboats, with a view to appropriate
that money to solid and durable fortifications. I was opposed to it in
Committee of the Whole. I did then, and do now consider, that there is no
necessity for any more gunboats. There are, in my opinion, a sufficient
number already for the Southern sections of the Union, for which places
they appear to be only adapted, except in a very few places to the North,
where there is shoal water. They may answer a very good purpose in shoal
water, but are inadequate for the defence of your ports and harbors to
the north of the New Jersey shore; and I very much doubt, whether, in a
gale of wind, they would not even sink at their mooring at the entrance
of either of the harbors of Portsmouth, Salem, Plymouth, Newport, or New
York.
It has been asserted that this was an electioneering scheme, and that
as soon as our Spring elections were over, no more would be thought
of it until the next election. I wish, sir, to put this question to
eternal rest, by stating the plain matter of fact. Why, sir, it has been
considered of so serious a nature in its consequences, and of so much
importance, that the Legislature of the State of New York, in their last
session, did enter into formal resolutions, instructing their delegation,
in both branches of the Legislature of the United States, to use their
utmost endeavors for the defence and protection of the port and harbor
of New York: the whole State is alive on this subject--and the memorials
now lying on your table from the Mayor and Corporation of that city,
together with the petitions from the citizens of all political parties,
tend to one and the same object, protection to their persons and to their
property; there is not, there cannot be any dissenting voice with them on
this subject.
Mr. J. RANDOLPH was too unwell to go far into the subject, but he would
ask the House whether they were acting with their accustomed caution
and distrust, where the expenditure of public money was involved? He
thought not. If he were convinced that the expenditure of $150,000 or
even $1,500,000 would answer the proposed end, he would cheerfully give
it. But, as had been observed, the system of gunboats was matter of
experiment, and if they should eventually turn out good for nothing, the
House would be of opinion that they had vested as large a capital in a
worthless project as would be deemed necessary. He would not undertake
to say that they were good for nothing--far from it. But there was no
information before the House which entitled him to say they were good for
much. When you compare, said Mr. R., the lavish appropriation made on
this subject in Committee of the Whole, and view the economy this House
always practises on every branch of expenditure, relative to the regular
army and navy, looking with an eagle eye on every dollar before they part
with it--it surprises me to see them voting away hundreds of thousands
of dollars for a species of vessel, which, in all human probability, may
be used for river craft in a few years. One thing has been ascertained.
Ships of war are defensive and offensive, too, but the House will vote
no money for an addition to them. I do not censure them for it; but if
they will not appropriate for objects, the physical powers of which are
ascertained, why vote the public treasure by handfuls for vessels, the
powers of which have never been tried? Let the experiment be made, and,
if it succeeds, let us appropriate liberally; but, till then, let us not
vote more money than has been already appropriated. I believe there is
one situation in which they may be useful--in the Mississippi. I wish,
however, not to be understood as speaking as a man of science on this
business. I only wish some evidence of the value of this machine, before
I vest so large a capital in it. I hope, therefore, that the blank will
not be filled with $150,000. As it has been stated, I think it will be
extremely disproportionate to vote $20,000 for the fortification of all
our harbors, and $150,000 for gunboats.
Mr. ELMER said that, under existing circumstances, he was opposed to
appropriating 150,000 dollars to building additional gunboats. The House
had determined that they would not authorize the President to man those
already built. It appeared to him very bad economy to suffer the public
vessels to lie in dock, and to build other vessels, the utility of
which was not ascertained. There might be situations in which gunboats
would be useful, but had they not enough of them already? If it should
be ascertained that thirty or forty gunboats should be wanted for any
particular purpose, Mr. E. said it might be prudent to authorize their
erection. He said he had been in favor of giving authority to the
President to man and equip the armed vessels and gunboats. The House had,
however, refused this. If, then, they would not authorize the President,
whatever the emergency, to man the present vessels, why build additional
vessels?
Mr. HOLLAND was opposed to filling the blank with so large a sum. He was
also opposed to giving authority to man the armed vessels. The nation was
in a state of profound peace, and he did not see that these vessels would
have any thing to do. He was opposed to this appropriation on another
ground. He believed, whenever the necessity should occur, they would be
able, in one, two, or three months, to build as many gunboats as would be
wanted.
Mr. GREGG said, from the discussions which had taken place, and the votes
of the House, there might be a propriety in postponing the business for
the purpose of obtaining information. For his own part, he was willing
to acknowledge that he was altogether in the dark. He did not know in
what situation gunboats would be useful, or the number of men required
to man them; nor did he know whether land fortifications were necessary,
in connection with them, to defend the port of New York. Before he could
act understandingly on the subject, it was necessary for him to have
this information. Some gentlemen say that gunboats will answer valuable
purposes, while there are others of opinion that there are so few places,
on the coast of the United States, where they will answer, that a small
number of them will be sufficient. I believe, said Mr. G., under these
circumstances, that it will be best to postpone the further consideration
of the subject, and, in the mean time, call on the Secretary of the Navy
to say at what points gunboats will answer, together with the number
of them necessary, and on the Secretary at War to say whether he is in
possession of any plan for the protection of New York, together with
its expense and the number of men required. It will be next to madness
to erect fortifications without putting in them sufficient men to keep
them in repair. Many fortifications, commenced some years ago, for want
of this provision, are now as useless as if they never had been begun.
Mr. G. said he was particularly desirous to obtain information from the
Executive as to the practicability of defending the port of New York. If
it could be defended, he would not be backward on the subject.
Mr. FISK hoped the motion would prevail. Experience had proved gunboats
to be useful. In their late war with Tripoli, they had been obliged to
borrow a number of them, which had proved not only an instrument of
defence, but likewise of offence. It was true, also, that, in other
cases, they would be useful. Indeed, they appeared to be peculiarly
adapted to the United States, who had a large extent of seacoast and
numbers of shoals, enabling them to act with effect; that they would rot
in time was true; it was also equally true that other shipping would
rot; and that the loss of fifty or sixty gunboats would not be equal to
that of a single frigate. It was also equally true that gunboats did not
require the same expense in manning and equipping as other vessels; they
were also so situated as to be capable of being instantly manned, which
was not the case in regard to other vessels. The Secretary of the Navy
had stated the number of men necessary for each gunboat at twenty-seven.
Take three hundred and fifty men as necessary for a frigate; of course
thirteen gunboats will not require more men than one frigate. Mr. F. said
he thought gunboats, in every point of view, the preferable defence. The
Secretary of the Navy had stated sixty gunboats to be requisite. For the
purpose, however, of accommodation, it is proposed to lessen the number
of gunboats to thirty, and to apply the remaining sum to fortifications.
He hoped this motion would prevail.
Mr. EARLY moved to postpone the further consideration of the second
resolution to Monday week. In common with other members, he felt the
necessity of information, before he agreed to carry further the system
of gunboat defence. It appeared from the report of the Secretary of the
Navy, that there were built, or on the stocks, seventy gunboats. He,
for one, was of the opinion that this was a number amply sufficient to
justify the requiring at least some information on the subject, either
as to the ports capable of being defended by them, or their general
capability of yielding defence to the United States.
The motion to postpone was disagreed to--ayes 49, noes 58.
Mr. G. W. CAMPBELL said he was in favor of filling the blank with
$150,000, as from all the official information before the House this
appeared to be the best mode of defence which had been devised. He
observed that some time since a majority of the House had considered
the gunboat system as the best means of defence. He would ask gentlemen
who were then in favor of this system, and were now opposed to it, what
reasons they had for their change of opinion. If the President and
Heads of Departments were of opinion that such a number of gunboats was
necessary as had been named, he would ask them what reasons they had
for thinking a smaller number sufficient, and whether the mere _ipse
dixit_ of a member of this House ought to stand in competition with the
deliberate opinion of the heads of departments? They were peculiarly
responsible to the nation, and must be considered as having taken more
pains to inform themselves on such a subject than an individual member of
the House.
Mr. PITKIN, in reply to Mr. FISK, observed, that he had compared the
estimates of a frigate and gunboats, from which he inferred that the
equipment and annual expense of a frigate of 44 guns, compared to that of
gunboats, was as eighteen to one.
Mr. ELLIOT said, that if the opinion of the President should be complied
with, there would be one hundred and twenty-nine gunboats built, which
in actual service would transcend the expense of the Navy of the United
States, and would cost more than a million of dollars. Mr. E. said he
considered the reproach cast upon those who were formerly the advocates
of gunboats, as strong evidence of their inutility. Gunboats had been
lately thought much of; what was the result? That gunboats might be
considered as a kind of vessel guarding a little deposit of national
spirit, if any there was left to put on board: but as soon as they were
assailed by the wind or waves, their maiden purity was gone. They were of
no use whenever there was wind or tide, and could only float in a time of
profound tranquillity.
Mr. ALSTON said he possessed little information with regard to the
advantages or disadvantages that were likely to flow from building the
number of gunboats that was proposed. He merely rose to ask the attention
of gentlemen to the grounds taken at the last session. The building of
gunboats had been instituted on the recommendation of the President made
at the last session. Gentlemen would there find the reasons on which
that system had been begun. They were not intended to be set afloat on
the ocean, to commit depredation or attack vessels at sea, but as an aid
and support to our fortifications, and to prevent an enemy from annoying
our seaports. It was, he believed, the opinion of the House at the last
session, that gunboats constituted the best system that could be devised
for this purpose.
Mr. EARLY moved to postpone the further consideration of the resolution
until this day week.
Mr. LLOYD said he should have no objection to the postponement, if he
knew any mode of obtaining the information desired. It appeared that
the committee had applied to the Secretary of the Navy, who ought to
possess full information on the subject. What was his reply? Waiving
altogether the expression of his own opinion, he merely confined himself
to stating that the President thinks it expedient to build sixty
additional gunboats. Whence, then, were they to get the information that
was desired, to enable them to determine whether gunboats are a proper
defence for the United States? They might apply to the President or the
Secretary of the Navy, and get information from them that they think them
necessary. Mr. L., however, said that he was of opinion that they ought
to judge on this subject from what had already taken place. For himself
he was free to declare that he was opposed to the gunboat system. He had
carefully attended to the arguments of gentlemen, and to what did they
amount? Have they adduced an argument to show their utility, or produced
an instance to show where they have been useful? It has been said that
their utility is established by the use made of them against Tripoli. But
he would ask whether they would have been of any use if the vessels of
Tripoli had left the shore? It was admitted that gunboats were not useful
on the ocean. It was evident, then, that they were building a navy for a
state of perfect calm; and were gentlemen disposed to expend millions
for vessels that would be only useful under such circumstances?
Mr. MUMFORD.--The gentleman from North Carolina on my right, said that
if any gentleman can show us any better mode of defence we shall be
glad to hear it, and although I think it incumbent on him to show us
the utility of gunboats, I will not detain the House but a few minutes
to recommend what I conceive to be a far better mode of defence, I mean
solid and durable fortifications that will last for ages, and block-ships
similar to the draught now held in my hand, and which any gentleman
may examine at his leisure if he chooses. Sir, the experience off
Copenhagen is an evidence of their real utility. Witness the engagement
with the British fleet and the Crown battery, (somewhat similar to the
plan of Montalembert, recommended by me in debate yesterday,) and the
block-ships. That fleet was actually silenced, and nothing saved the
proud navy of old England on that memorable day but the game of flag of
truce played off so successfully by the hero of Trafalgar; and when in
order I shall move to adopt those block-ships in place of gunboats.
Mr. TALLMADGE said the question before the House had no connection with
the defence of New York; it was a proposition for building gunboats.
Having been on the select committee that brought in these resolutions,
he thought it proper to state that there had not in that committee
been a unanimous opinion in favor of gunboats. He was himself entirely
hostile to the measure. He saw no necessity for adding to the number
already built, or authorized to be erected. They had thirteen gunboats
fit for service, and fifty-six would be soon launched. It would seem to
him better to comport with the system of economy, in the first instance,
to finish and prepare these fifty-six for service. No reason had been
assigned for the additional sixty that had been proposed, but the mere
opinion of the President. Mr. T. said he did not wish to call in question
the high authority attached to the opinion of the President, but he would
wish to know whether any naval officer had recommended gunboats as a
proper defence for the country. He did believe there were some particular
circumstances under which they would be useful, and under this impression
he had hitherto voted. But when he saw nothing but gunboats called for,
he was placed under the necessity of refusing to grant a single dollar.
It appeared as if they were contemplated to be relied on as the exclusive
defence of the United States, and as if it were intended to let the
frigates rot. He was opposed to the postponement, as he did not see the
probability of obtaining any useful information not already before the
House.
The question was then taken on postponing the consideration of the
resolution until Monday, which was carried--yeas 69.
THURSDAY, February 12.
_Indiana--Suspension of the Anti-slavery Clause of the Ordinance of 1787._
Mr. PARKE, from the committee to whom was referred the letter of William
Henry Harrison, Governor of the Indiana Territory, enclosing certain
resolutions of the Legislative Council and House of Representatives of
the said Territory, made the following report:
That the resolutions of the Legislative Council and House
of Representatives of the Indiana Territory relate to a
suspension, for the term of ten years, of the sixth article of
compact between the United States and the Territories Northwest
of the river Ohio, passed the 13th July, 1787. That article
declares “there shall be neither slavery nor involuntary
servitude in the said territory.”
The suspension of the said article would operate an immediate
and essential benefit to the Territory, as emigration to it
will be inconsiderable for many years, except from those States
where slavery is tolerated; and although it is not considered
expedient to force the population of the Territory, yet it is
desirable to connect its scattered settlements, and, in regard
to political rights, to place it on an equal footing with the
different States. From the interior situation of the Territory,
it is not believed that slaves would ever become so numerous
as to endanger the internal peace or future prosperity of the
country. The current of emigration flowing to the Western
country, the Territories ought all to be opened to their
introduction. The abstract question of liberty and slavery is
not involved in the proposed measure, as slavery now exists
to a considerable extent in different parts of the Union; it
would not augment the number of slaves, but merely authorize
the removal to Indiana of such as are held in bondage in the
United States. If slavery is an evil, means ought to be devised
to render it least dangerous to the community, and by which the
hopeless situation of the slaves would be most ameliorated; and
to accomplish these objects, no measure would be so effectual
as the one proposed. The committee, therefore, respectfully
submit to the House the following resolution:
_Resolved_, That it is expedient to suspend, from and after the
1st day of January, 1808, the sixth article of compact between
the United States and the Territories and States Northwest of
the river Ohio, passed the 13th day of July, 1787, for the term
of ten years.
Referred to the consideration of the Committee of the Whole on Monday
next.
FRIDAY, February 13.
_Importation of Slaves._
The bill, sent from the Senate, entitled “An act to prohibit the
importation of slaves into any port or place within the jurisdiction of
the United States, from and after the first day of January, in the year
of our Lord one thousand eight hundred and eight,” together with the
amendments agreed to yesterday, were read the third time; and, on the
question that the same do pass, it was resolved in the affirmative--yeas
113, nays 5, as follows:
YEAS.--Evan Alexander, Isaac Anderson, John Archer, David Bard,
Joseph Barker, Burwell Bassett, George M. Bedinger, William W.
Bibb, Barnabas Bidwell, Phanuel Bishop, John Blake, jr., Thomas
Blount, James M. Broom, Robert Brown, John Boyle, William A.
Burwell, George W. Campbell, John Chandler, John Claiborne,
Joseph Clay, Matt. Clay, George Clinton, jr., Frederick Conrad,
Orchard Cook, Leonard Covington, Richard Cutts, Samuel W. Dana,
Ezra Darby, John Davenport, jr., Elias Earle, Peter Early,
James Elliot, Caleb Ellis, Ebenezer Elmer, Wm. Ely, John W.
Eppes, William Findlay, James Fisk, Charles Goldsborough,
Peterson Goodwyn, Andrew Gregg, Isaiah L. Green, Silas Halsey,
John Hamilton, Seth Hastings, William Helms, David Holmes, John
G. Jackson, Walter Jones, James Kelly, Thomas Kenan, Nehemiah
Knight, John Lambert, Joseph Lewis, jr., Henry W. Livingston,
Edward Lloyd, Matthew Lyon, Duncan MacFarland, Patrick
Magruder, Robert Marion, Josiah Masters, William McCreery,
David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah
Morrow, John Morrow, Jonathan O. Mosely, Gurdon S. Mumford,
Jeremiah Nelson, Thomas Newton, jr., Gideon Olin, Timothy
Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Rea
of Pennsylvania, John Rhea of Tennessee, Jacob Richards, John
Russell, Peter Sailly, Thomas Sammons, Thomas Sanford, Martin
G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John
Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph
Stanton, William Stedman, Samuel Taggart, Benjamin Tallmadge,
Sam’l Tenney, David Thomas, Thomas W. Thompson, Uri Tracy,
Philip Van Cortlandt, Killian K. Van Rensselaer, Joseph B.
Varnum, Daniel C. Verplanck, Peleg Wadsworth, Matthew Walton,
John Whitehill, Robert Whitehill, Eliphalet Wickes, Nathan
Williams, Alex’r Wilson, Joseph Winston, Richard Wynn, and
Thomas Wynns.
NAYS.--Silas Betton, Martin Chittenden, James M. Garnett, Abram
Trigg, and David R. Williams.[47]
MONDAY, February 16
_Circuit Courts._
The bill sent from the Senate, entitled “An act establishing circuit
courts in the district of Kentucky, Tennessee, and Ohio,” together
with the amendments agreed to on the thirteenth instant, were read a
third time: Whereupon, the bill, with amendments, was recommitted to a
Committee of the Whole this day.
The House, accordingly, resolved itself into the said committee; and,
after some time spent therein, the bill and amendments were reported
without amendment thereto.
The bill was then read the third time, and on the question that the same
do pass? it was resolved in the affirmative--yeas 82, nays 7.
_Lewis and Clarke._
The House resolved itself into a Committee of the Whole on the bill
making compensation to Messieurs Lewis and Clarke, and their companions.
The bill was reported with several amendments thereto; which were
severally twice read, and agreed to by the House. The House proceeded
further to amend the said bill: When an adjournment being called for, the
House adjourned.
TUESDAY, February 17.
_The Writ of Habeas Corpus._
The House proceeded to consider the motion of Mr. BROOM, of the seventh
instant, and the same being read in the words following, to wit:
“_Resolved_, That it is expedient to make further provision, by
law, for securing the privilege of the writ of habeas corpus,
to persons in custody, under, or by color of, the authority of
the United States.”[48]
Mr. BROOM addressed the House as follows:
Mr. SPEAKER: It will be recollected by the House that I had the honor of
submitting a resolution to make further provision by law for securing
the privilege of the writ of habeas corpus to persons in custody, under
or by color of the authority of the United States. It was then my wish
that it should lie upon the table, in order that members might have
an opportunity of considering the subject; being fully persuaded that
the more it was considered the more evident would the importance of it
appear. As it now becomes my duty to call the attention of the House to
the subject, I shall move that the resolution be referred to a Committee
of the whole House, and I should not offer a single observation in
support of this motion, but for the doubts which have been suggested
by several members, of the necessity and propriety of legislative
interposition at this time. I trust therefore that I shall be indulged in
pointing out the necessity and importance of the provision which it is
contemplated to make. I am sensible that this subject is not familiar to
the majority of this House; for, until now, no circumstance has occurred
in this country which could make us duly appreciate the value of the
privilege of the writ of habeas corpus. In ordinary times, the laws which
already exist may be sufficient, for in such times there is no temptation
to transgress the limits of constitutional or legal privileges; but
in times of turbulence and commotion, the mere formal recognition of
rights will afford too feeble a barrier against the inflamed passions of
men in power, whether excited by an intemperate zeal for the supposed
welfare of the country, or by the detestable motives of party rancor or
individual oppression. I could have wished that circumstances had never
occurred which would make it necessary to fortify, by penal laws, the
constitutional privilege of habeas corpus, and that the whole nation,
from the first to the least, had regarded it with such religious
veneration, that no officer, either military or civil, would have dared
to violate it. But recent circumstances have proved that such a wish
would have been in vain, and have demonstrated, more powerfully than any
abstract reasoning, the necessity and importance of further legislative
provision.
This privilege of the writ of habeas corpus has been deemed so important
that, by the ninth section of the first article of the constitution, it
is declared that it shall not be suspended, unless when, in cases of
rebellion or invasion, the public safety may require it. Such is the
value of this privilege, that even the highest legislative body of the
Union--the legitimate Representatives of the nation--are not entrusted
with the guardianship of it, or suffered to lay their hands upon it,
unless when, in cases of extreme danger, the public safety shall make it
necessary.
The suspension of this privilege upon slight pretences, it was easily
foreseen would destroy its efficacy, and if it depended on the mere
will of Congress, it would become, in the hands of the majority, the
most certain and convenient means to accomplish the purposes of party
persecution, or to gratify political or personal rancor or animosity.
This constitutional provision was only intended as a check upon the power
of Congress in abridging the privilege; but was never intended to prevent
them from intrenching it around with sound and wholesome laws; on the
contrary, it was expected that Congress were prohibited from impairing,
at their pleasure, this privilege; that they would regard it as of high
importance, and by coercive laws insure its operation. By the fourteenth
section of the judiciary law, vol. 1, L. U. S., page 58, power is given
to certain courts and judges, to grant the writ of habeas corpus; and
this is all the provision made by any act of Congress to secure this
privilege. Thus the constitution sanctions the writ, and the act of
Congress gives the judges power to grant it; but there is no law of the
United States which compels the judge to grant it, or the officer to obey
it; and the only remedy left to the individual is that which he derives
from the common law of England, (if, indeed, gentlemen will allow to that
law any operation in the United States courts;) and that very law upon
which we now rely to enforce the privilege was found, during the reign of
Charles II., utterly insufficient, and has ever since the thirty-first
year of that reign, been considered in England as only auxiliary in
securing the privilege of the writ of habeas corpus.
As the House has now agreed to consider the motion, I will proceed in
support of it. The statute 31, chapter 2, was designed to remedy, and
did effectually remedy, the defects of the common law provision on this
subject. By that statute severe penalties were imposed on judges refusing
to grant the writ of habeas corpus, and on all parties refusing to obey
it. In most of the States, laws have been made upon the principle of
the statute of Charles, and so far as they extend, are found to have the
most beneficial effect in securing the privilege of the writ, but they do
not extend to inflicting penalties on judges of the courts or officers
of the United States. If the privilege of the writ of habeas corpus be
important, and the laws be defective, it is surely our duty to apply the
remedy. Of its importance, it is true we have had but little experience
in our own country. In England, from whence we derive our knowledge of
it, they have proved its value; they have tried it, and it has not been
found wanting. In England, this inestimable privilege has been for ages
the proud theme of exultation; there they worshipped it as a talismanic
wand which could unbar the gates of the strongest prison and dissolve in
an instant the fetters of the captive. It was to Englishmen as a wall of
fire by night, shielding them from the arbitrary sway of tyrannic power.
It is, indeed, the great palladium of that English civil liberty which
has exalted the English character. Of the power and influence of civil
liberty upon the happiness of the people of England we need no stronger
evidence than the situation of surrounding nations, where it was unknown.
Let us go back to less civilized times, and we shall see in those nations
men in the most abject state of society, suffering oppression in every
possible shape; there, every private castle was a secret and inviolable
prison; there the life and liberty of the most illustrious, as well as
the meanest, subject, were alike the sport of the caprice of a tyrant.
Even the petty lordling held as it were the shears of fate, and cut at
pleasure the thread of the life of his vassals. A _lettre de cachet_
could confine the unhappy victim of power for life in the loathsome walls
of a dungeon, and in spite of the ties of affection or blood, friends
must forget each other, or share a common fate. The savage tortures of
the inquisition chilled the soul with horror, and the gloomy recess of
the sanctuaries of religion too often bore witness to the diabolical
temper of man when inflamed with passion and unrestrained by wholesome
laws. Such was the condition of other countries while the people of
England were reposing in security under the protection of their civil
institutions; institutions which had received the sanction of ages, and
were guarded by the religious veneration of the people. The right to
personal liberty, unless for the commission of an offence against law;
the right to know the accusation against them, and the right to be tried
by their peers, were all recognized by their charters, and which their
monarchs had sworn inviolably to observe. These rights were not merely
secured by parchment; they were incorporated with the habits, manners,
and customs of the people; they were handed down from father to son in
trust for posterity, and guarded as a precious inheritance, which could
never be diminished with honor. The people were early taught to know
them, and to consider it a sacred duty to draw their swords in defence
of them. These fundamental rights of Englishmen have existed from their
earliest ages; they were collected in a body by Edgar the Saxon; they
were revised by Edward the Confessor, and were ratified by William the
Conqueror; they were recognized by Magna Charta, and after the wars
between Henry III. and his subjects, were confirmed by the statute of
Marlborough, and never afterwards questioned. Rights thus maintained
through all the convulsions of England; rights thus endeared to the
nation, and engraven on the hearts of the people, and which have walked
hand in hand with them through the darkest periods of their history,
require no other proofs of their importance.
It has been too generally our misfortune to wait until offences have
been committed, before we have provided a punishment; but, when such
offences have been committed, the public attention has been awakened, and
laws have been passed to guard against them in future. The violations
of our constitutional privileges at New Orleans, have shown clearly the
insufficiency of existing laws and the imperious necessity of providing
the remedy. If we will not be roused from our slumbers by the experience
which we have had, I shall despair that we will ever be awakened to
any sensibility of our personal rights--for, let it be remembered that
these abuses are not of an ordinary character--they have been committed
by a military officer at the head of the army of the United States,
and in full view of the highest authorities of the Union. The civil
authority at New Orleans has been trampled under foot, and the commander
of the army, in the plenitude of his power, avows his disobedience to
laws and constitution, and takes on himself all the responsibility of
the violation of our constitutional rights of personal liberty. Lost
in amazement at this bold and unprecedented stretch of power, we can
scarcely be sensible of its extent, unless we contrast it deliberately
with the constitution. The constitution declares that no warrant shall
issue but upon probable cause, supported by oath or affirmation; that
no citizen shall be deprived of his liberty without due process of law;
and that the accused shall enjoy the right of a speedy trial by a jury
of the district where the offence was committed. Yet, in defiance of
all these constitutional provisions, our citizens have been arrested
without any warrant, and without any process of law whatever; deprived
of their liberty; confined in military prisons, and transported under
military guards, two thousand miles from the place where the offence was
committed. The constitutional privilege of the writ of habeas corpus,
which is to secure these rights to the citizen, has been treated with
contempt, and a military officer vauntingly takes upon himself all
the responsibility of wilful disobedience to the writ. For all these
violations we are to be told that the conspiracy which existed in that
country will afford a sufficient justification. With respect to the
conspiracy, whatever might have been its contemplated extent we have
reason to believe that it is now at an end. And, without determining
whether the aspect which it had at New Orleans was really alarming to
the General, or whether any circumstances do exist which may palliate
his conduct, this much we all know, that his power was employed in
the arbitrary violation of the rights of the citizen, and that the
conspiracy is to furnish the justification. Such conduct, and even such a
justification, I look upon with abhorrence and dread. For, if, upon every
alarm of conspiracy, our rights of personal liberty are to be entrusted
to the keeping of a military commander, we may prepare to take our leave
of them for ever. For my own part, I wish to live under a government of
laws, and not of men; for, however pure and upright be the intentions
of our military commanders, however virtuous, and even unsuspected be
their conduct, I can never agree that my right to personal liberty shall
depend on their forbearance and discretion. I know not whether these men
that have been arrested are innocent or guilty of the treason with which
they are charged, but, whether innocent or guilty, they must be arrested
and tried according to law. However atrocious the crime which has been
committed, the punishment must be according to law. For, in transgressing
the limits of the law to revenge upon a criminal the wrongs of society,
we are guilty of injustice both to society and the criminal. The manner
and circumstances attending these arrests, have been of the most uncommon
kind. It is said that all intercourse between one of the prisoners and
his family and friends, was cut off, and that not a soul, except military
men, was suffered to approach him; that, after being detained under close
military confinement for nearly two weeks, he was transported, by the
way of Baltimore to this city, and that, upon his arrival here, he was
informed that there was no evidence to support any charge against him
whatever. But whether this man, or the others who have been arrested, are
guilty or not, it can have no influence upon our deliberations at this
time. For, if even these violations now affect only the guilty, they may,
at the discretion of the military officer, be extended to the innocent.
It is enough for us to know that the rights of personal liberty,
guarantied by the constitution, have been openly violated in the person
of a citizen of the United States, and that no laws exist sufficiently
effectual to prevent or punish such violations. It then becomes our duty
as faithful guardians of the public rights, to interpose our authority
in order to preserve them. But, if we content ourselves with tamely
looking on, while our best rights are trampled upon, we become partakers
of the guilt by the encouragement which we give the offenders. For these
violations, what remedy has the most innocent individual against the
officer who arrested and transported him? As the laws of the United
States have provided none, his remedy is at common law. He must sue for
false imprisonment, and it depends entirely on the jury to say whether
they will give him any thing or nothing. Can a remedy so uncertain
prevent the offence? or, will a remedy so precarious, always remunerate
the injured? But, if to this we add exemplary penalties, we have, surely,
an additional security that the laws will be obeyed. The laws are not,
and in my opinion will not be sufficient, unless they punish in the most
prompt and exemplary manner all judges who refuse to grant the writ of
habeas corpus, and all officers who refuse to obey it. For such offences,
ruin ought to stare a man in the face; and, when he has so seriously
abused his power, he ought to be stripped of it forever. But, if we have
no laws to guard us against these abuses, and are unwilling to make any,
we take upon ourselves all the responsibility of future violations.
Mr. BURWELL said he had determined to vote for the reference of the
resolution, that the mover might suggest any additional security to
the personal liberty of the citizen he thought necessary, although he
did not believe a change in the law material, or that one essential
provision had been omitted. Had the gentleman from Delaware confined
his remarks to the subject of his motion, and avoided observations
unconnected with his ostensible object, he should have acquiesced
silently. The Constitution of the United States recognizes the writ of
habeas corpus, without determining in what manner it shall be enforced
in the courts. That can only be ascertained by recurring to the acts of
Congress in 1789, establishing a judicial system, organizing courts, and
fixing their powers. The fourteenth section of that law relates to this
writ, and says: “This and all other writs not specially provided for by
statute shall be issued agreeable to the principles and usage of law.”
Mr. B. contended the principles here alluded to could only be those of
the English law, and the usages those of their courts; otherwise there
could not be found in the constitution, or laws of the Union, a single
sentence relative to the subject, and the decisions heretofore had in our
courts would be consequently illegal. He said he was fully justified in
this position by the uniform proceedings in the courts, and particularly
those which had recently taken place in this district before the court
acting expressly under the laws of Congress. To show how ample the
provisions were, he referred to Blackstone’s Commentaries, vol. 3, page
137, statute Charles 2d, “Any prisoner may move for and obtain his writ
of habeas corpus, &c., and the Lord Chancellor or judges denying the
same on sight of the warrant or oath, that the same is refused, shall
forfeit to the party grieved, the sum,” &c. The judge is here compelled,
under heavy penalties, to afford relief to all persons who apply for the
writ, and we shall presently see the law guard against delay or evasion
by further limitations on the discretion of the judges. Mr. B. said he
admitted the specific penalties of the statute did not attach to the
judges and courts of this country; but it established their duties,
and the punishment inflicted is regulated by the Constitution and law
of the United States applicable to judicial offences and misdemeanors.
The same statute provides, “that officers and keepers neglecting to
make due returns, or not delivering to the prisoner or his agent a copy
of the warrant of commitment within six hours, or shifting the custody
of the prisoner without sufficient authority, shall forfeit,” &c. In
addition to this, the court could enforce its process by attachment,
fine and imprisonment, and call on the Executive for aid, if resistance
is made. Mr. B. said this statute was considered as having completely
guarded against oppression, and was expressly intended to put an end
to the evasion of the judges: “The oppression of an obscure individual
gave birth to the famous habeas corpus act, 31st Charles 2d, which is
frequently considered as another magna charta of the kingdom, and by
consequence and analogy has also in subsequent times reduced the general
method of proceeding on these writs, and (though not within the reach
of that statute by issuing merely at common law) to the true standard
of law and liberty.” Black. Com. 136. What more is requisite? Your
courts are compelled to issue process and grant relief; your officers
to carry it into effect, and your citizens to obey. Mr. B. observed, it
appeared to him impossible to devise additional provisions, when those
already incorporated into the jurisprudence of the country by the act of
Congress, and exercised by the courts, embrace every case arising under
the laws, and extend to all persons confined under the authority or color
of authority of the United States. He, however, was not a professional
man, and was therefore the more disposed in favor of the commitment, lest
he should be mistaken in his impressions. If the gentleman from Delaware
should discover any salutary alterations, he should not only receive his
vote but his thanks.
The gentleman from Delaware says, the late arrests at New Orleans by
the military are early warnings of the danger of standing armies. Mr.
B. accepted the hint, and hoped the gentleman would himself recollect
and profit by it. Those who acted with him had long been partial to
those establishments, and blind to their tendency. The events alluded
to proved the indispensable necessity of preserving them subordinate to
the civil authority. This proved the importance of reducing the standing
army to the lowest point compatible with the safety of the frontiers.
This was the reason which induced him during the present session to vote
against the proposed augmentation of our forces; and while he continued
to entertain his present opinions, and felt his present jealousies of
a conflict between the civil and military power, he was determined to
avoid the issue by keeping the latter in complete subordination. If
an opposite policy should ever become ascendant in this country, the
measures at New Orleans, instead of being temporary, will be entailed
upon us. Mr. B. said he thought it improper to mention the events which
had occurred at New Orleans. It was extremely probable prosecutions would
be commenced against the officer, and any expressions of disapprobation
in that House would give a tone to public opinion which justice required
should as yet be suspended. Every person admitted the Commander-in-chief
had violated the law. He admitted it himself, and assigned reasons of
justification which we ought not to decide, but leave to the courts of
justice. They are the proper tribunals to punish those who infringe the
rights of the citizen; and until they are closed by power, or their
decrees set at defiance, and the Executive unable to enforce them,
legislative interference cannot be necessary. It has been said, every
officer who refuses to obey the writ of habeas corpus from a court should
be punished with death; and this has been proposed as an effectual
provision to secure the benefit of this writ. Has the gentleman so soon
forgotten the doctrine advanced on that side of the House, and assented
to during the present session, when we were told a military officer knew
no law but the orders of his superior; when we were told the contrary
was monstrous, absurd, and subversive of all subordination in the army;
that they were not lawyers versed in your laws and constitution? Mr. B.
hoped he had. But the gentleman from Delaware had run into exactly the
opposite extreme, by placing the highest and lowest officer upon the same
footing, exacting from both the same knowledge of the law, attaching the
same responsibility, and, contrary to every principle of justice and
humanity, punishing with the same severity the man who intentionally and
knowingly violates the law, and the man who ignorantly commits a breach
of duty. It would completely reverse what has been so long and wisely
recognized in our criminal jurisprudence. The redress allowed to a man
who has been forcibly seized and imprisoned without legal authority under
the existing laws, is much more conformable to equity than this mode. It
is an offence against an individual’s rights, and should be punished,
like all other injuries of a personal nature, by action and recovery of
damages, in which the jury will always have a just regard to the rank
of the offender, the innocence of the victim, and the wantonness of
the violence. They will discriminate between the lawless exercise of
power by the Commander-in-chief and the subaltern, who executes what he
supposes he is bound by his oath to perform. Mr. B. said the mover of
this resolution had expressed more alarm at the situation of this country
than was real, or than he supposed was felt by any member of this House.
One would imagine that the arrests at Orleans had extended through the
whole nation, and that no man was safe from persecution. As far as he
had understood, the moment those arrested had reached the United States,
they had been turned over to the courts, and every privilege been
extended to them. The people of this country can never be in danger
while their Representatives remain pure, and are disposed to withhold
from the Executive dictatorial powers. Have we not already, during the
present session, given the most honorable pledge to our constituents
that we are not inattentive to their security, when we rejected the bill
to suspend the writ of habeas corpus? Why talk of the lettres de cachet
which have issued in France, and of other oppressions in that nation?
Our Government is neither actuated by such passions, nor invested with
such powers. It is degrading to assimilate the two Governments, and argue
from a similarity which does not and cannot exist. The one is composed of
responsible agents; the other is despotic, cruel, unrelenting and corrupt.
But we are told that a most daring violation of human right has taken
place--that men have been seized in New Orleans and shipped here for
trial. Far be it from me to exaggerate or soften these acts. Such as they
are, I am willing to trust them to an enlightened community. An officer
has undertaken at his own responsibility to seize and send here three
persons. Two of them charged on his oath with treason, or misprision
of treason, and the third by him believed to be guilty. The first two
on their arrival here, were delivered over to the civil authority, and
on solemn argument committed on a charge for treason. The other was
delivered over to the civil authority also and discharged. No man will
say that the conduct of the officer who seized and shipped these persons
is legal. He has done an illegal act at the risk of his fortune in
damages. Let the law take its course; let the individuals prosecute; let
an honest jury put on one side the crime with which they are charged, and
on the other, illegal arrest and shipment; let them strike the balance.
If they assess damages, and it shall hereafter appear that this was
a wanton and unnecessary exercise of power, the officer must suffer.
If, on the contrary, it shall appear that the officer had no object in
view but the public good, that he did really believe New Orleans about
to be attacked by a superior force, and that these prisoners could not
be safely kept there, I for one, shall not hesitate to pay the damages
assessed against him. Freedom can never be endangered by an act like
this, where your laws are suffered to take their natural course without
suspension or interruption--where the injured individual can bring before
a jury his claim for damages. What more safe, more certain, or adequate
remedy can you ask for an injury done to personal freedom, than the
verdict of a jury of freemen? What would be the feelings of an honest
and independent jury called upon to decide a case like this, where
an innocent individual of character had been seized and shipped? The
damages would be such as to heal the wounded feelings of the oppressed
individual, and to deter in future the commission of such an act. If,
on the contrary, strong circumstances of guilt should appear against
the individual, the damages would be nothing. The officer must depend
on establishing before the community the purity of his motives, and the
probable guilt of those on whom he has exercised power in violation
of right. If the individuals seized and sent here shall be found to
be innocent, I should wish them to recover heavy damages. Under my
present impressions, I should certainly, if on their jury, not assess
damages. If the charges made against them are well founded, I would
as soon give damages against an individual who seized and secured for
trial a highway robber. The public officer who knows of the existence of
treason; who sees an individual embarked in schemes dishonorable to his
country; who believes him aiding an approaching enemy, would deserve to
be broke if he did not seize him. On the present occasion the officer
has gone further--he has seized and sent them to you. He has violated
the personal right of the citizen. If from honest zeal for the public
good, he will find a sure protection and shield before an independent
and patriotic jury. If the persons are innocent, and have been seized
by him to wreak private resentment, or on any motive less pure than the
public welfare, his reputation as a soldier is destroyed, and his fortune
must be lost in damages. I do not believe, however, that much sympathy
will be excited in the public mind, when the people shall understand
about what, and about whom, all these clamors have been raised. What is
the naked fact? General Wilkinson has seized and sent round to the seat
of Government three persons, at a time when he believed New Orleans in
danger of being attacked by a superior force. Of these persons, the one
is a bankrupt foreigner, charged on oath with being an accomplice of
Aaron Burr. The second, a young American, charged also on the oath of
your Commander-in-chief, with having disgraced the American character, by
condescending to be employed as an agent for corrupting your army; with
having actually carried proposals of bribery to your Commander-in-chief.
The third, a foreign lawyer, who owes to the liberality of the people
of this country his bread. Two of these persons, in good Federal times,
might have been transported under the alien law to Botany Bay. But men
are now seen in your courts actively denouncing this measure, who voted
for and perhaps brought forward the alien law. I mention not this to
justify the present proceeding, but to show to the people the spirit
in which this resolution has originated. Your Commander-in-chief has
been placed in a difficult situation. In daily expectation of an attack
by a superior force, and opposed by the whole body of the law in the
territory, a man greatly his superior in talents and firmness might have
erred. He ought most certainly to have delivered over these persons to
the civil authority. Had he done this, however, it is not yet decided
where the trial would have been held. The district court of New Orleans
has the same jurisdiction with the district court of Kentucky. The
Kentucky district court has the ordinary criminal jurisdiction of a
district court of the United States, which extends only to offences
punishable by fine or whipping, and the whole civil jurisdiction of a
circuit court of the United States; so that these persons, if charged
with treason against the United States, could not have been tried in
New Orleans, and must have been sent here or elsewhere by the civil
authority. Thus much for the violation of right which has taken place.
Mr. BIDWELL observed, that on a motion to refer this resolution to a
Committee of the Whole, he thought it unnecessary to discuss the merits
of the subject at large; since the very object of the commitment was to
afford a full and fair opportunity for such a discussion, and for any
specific proposition which the mover might think proper to submit. He was
in favor of the proposed commitment, but on very different grounds from
some of those which had been urged. Whether the conduct of the commander
of the army in arresting certain persons who attempted to corrupt him
and to seduce the army, to join in a conspiracy against their country,
was to be condemned or not, was a question not suitable to be acted on
at the present time, and under existing circumstances. If the House were
the proper tribunal to decide that point, this was not the proper mode of
deciding it, nor the proper time for the decision. No one would deny that
the commander of an army or of a post might be so circumstanced that it
would be his duty to make a seizure of suspected persons, or perhaps do
other acts not provided for by any law. In such a case he must act under
a high responsibility, and throw himself upon the justice of his country.
On this ground General Wilkinson had professed to act. If his professions
should be justified by the real state of facts, he would be entitled to
a favorable consideration. But at present it was unseasonable for the
Legislature to express any opinion or take any measure. He regretted,
therefore, that the gentleman from Delaware (Mr. BROOM) had resorted to
this transaction in support of his motion. On general principles, Mr. B.
added, he was willing to go into a Committee of the Whole on the subject.
The importance of the privilege of habeas corpus was acknowledged by
all. The constitution, by restricting the Legislature from suspending
it, except when in cases of invasion or rebellion, the public safety
may require a suspension, had recognized it as a writ of right, and our
statutes had authorized certain courts and magistrates to grant it.
It had been, indeed, in some respects doubtful where the authority to
issue such writs was lodged. Whether, for instance, the Supreme Court,
a circuit court, or the justices of the Supreme Court, out of their
appropriate circuits, had that authority, were questions on which not
only professional men, but judges themselves, had differed in opinion.
Some improvements, perhaps, might be suggested. Although he lamented that
the gentleman from Delaware had moved the subject at the present time,
while some of the questions involved in it were under the consideration
of the judiciary, and that he had referred, in his argument, to the late
transactions at New Orleans, of which we have not sufficient information
to form a satisfactory judgment, yet he would consent to refer the
resolution to a Committee of the Whole, for the purpose of considering
such propositions as that gentleman might offer for the amendment of the
law.
Mr. EARLY.--Mr. Speaker, the motion, timed as it is, and accompanied
by the speech we have this day heard from the honorable mover, has
a suspicious aspect and influence upon certain judicial procedures,
depending at the present moment within the walls of this building. Is
this House willing to suffer such manœuvres to take their proposed
course, and to produce their wished-for effect? Are they prepared to
interpose the weight of their influence to ward off the infliction of
punishment upon traitors, by passing sentence of condemnation on acts
which have produced their arrest and confinement? But it is not now alone
that this pernicious tendency of the resolution is to be felt. Actions
for damages are no doubt to be brought against the Commander-in-chief.
Whether the damages which may be recovered, ought or ought not to be made
good to him by the Government, must depend upon circumstances yet to be
developed. That he has violated both law and constitution, is not denied.
But whether there existed that imperious necessity for such violation
which alone can justify it, and give him a claim upon the Government for
the damages to which he may be subjected in consequence thereof, can
only be determined upon a full view of all circumstances. Here presents
itself another strong objection to the resolution. Its tendency is to
procure now that expression of opinion by the National Legislature, in
relation to the events at New Orleans, which will, which must, raise a
powerful obstacle hereafter, against a remuneration of any damages that
may be recovered against the Commander-in-chief. To this I will not
consent--against it I hold up my hands, and enter my most solemn protest.
There is still a farther objection; the tendency of the resolution, if
adopted by the House, will be to influence the amount of damages which
may be assessed. Yes, sir, it will be viewed as the expression of an
opinion on the part of Congress as to the demerits of the act for which
damages are claimed. The effect upon the minds of a jury is even more to
be dreaded than that upon the opinion of the judges. Who is there that
cannot perceive its force? Who that must not deprecate its effect? If it
should be observed that the resolution itself cannot be open to all the
objections now urged against it, let it be recollected that the honorable
mover has taken special care to give to it a direction, and accompany
it by circumstances which must insure to it the operation complained
of. In ordinary cases there can most certainly be no objection against
an inquiry after defects in any branch of law, with a view to the
application of some remedy. But such is not, as I apprehend, the state
of the present question. Admit, for argument’s sake, that a defect does
exist in the present provisions for securing the habeas corpus privilege,
can an adequate remedy be now applied? It cannot, we know it cannot.
But, Mr. Speaker, where is the proof that the provisions now in force
are not sufficient for the security of the person? Have you any
evidence to this effect? If you have, I am ignorant of it. Are not the
courts of justice open? Let the persons injured resort thither. Let
their complaints be laid before an American jury. Will not an adequate
redress be had there? Are the people of the United States too insensible
of the value of the privilege of the habeas corpus to award damages
proportionate to the injury sustained by its infraction? Or is it that
gentlemen suspect, that the individuals who have been arrested were
engaged in a plot so diabolical that a jury would, upon a view of the
whole ground, assess damages too inconsiderable to comport with their
wishes? Is it for this reason that the American Congress are asked to
prejudge the case, and to throw their weight into the scale against an
officer who, from every thing that yet appears, has acted from motives
of the purest patriotism? The part he had to perform was one of the most
arduous ever assigned to the lot of man. Entrusted with the defence of
an important and extremely remote point, where all was to be done before
instructions could be received from his Government, every measure was to
be taken by his own judgment and upon his own responsibility. His chance
of information as to the extent of the danger was extremely limited,
and, so far as facts have come to light, he had powerful reasons for
believing that the conspiracy was deeply laid--that it had diffused
itself extensively in the very bosom of the country against which it was
directed, and that it would be supported by a military force far more
numerous than any he had at command.
Mr. BROOM.--Mr. Speaker, I confess that the opposition which this
resolution has met with does surprise and astonish me, and more
especially when I consider the quarter from which it comes. That those
who have been the most clamorous about the rights of the people, who have
been jealous in the extreme of even the lawful exercise of power, who
have assumed to themselves almost the exclusive privilege of protecting
our rights, should now refuse even an inquiry whether those rights cannot
be better protected, is to me a problem which I cannot solve, unless I
suppose that these were principles and professions intended only for
opposition, but never as the guide of administration. But when the
principle is avowed that no laws shall be enacted for better securing our
personal rights, and that no inquiry even on the subject shall be made
at this time lest it might cast a censure on the conduct of an officer
who violated them, I consider it my duty to protest against it. Sir, is
it come to this, that when the Commander-in-chief of the Army of the
United States shall turn his arms against our constitutional rights, that
we shall not provide against future violations for fear of exciting a
prejudice in the public mind against the officer? Prostrate indeed must
be our condition when we can see our great rights of personal liberty
trampled upon by a military commander, and be deterred from legislating
lest the punishment of future violations should be construed into the
murmur of disapprobation of the past! For my own part, I deprecate
such a state of things, and, in spite of party, trust that the highest
legislative body of a free people will not be found so unfaithful to
themselves and their country as to give it their sanction.
The Message of the President, of the 22d of January, informs us that
two persons have been seized at New Orleans by General Wilkinson, and
embarked for ports in the Atlantic States, and promises that, upon their
arrival, they shall be delivered over to the custody of the law. General
Wilkinson states that Mr. Bollman, one of the persons so seized, was
required by the superior court, but that he got rid of that affair under
the usual liability for damages. Another message informs us of their
arrival here, and that measures are taken to hold them in custody. These
facts warrant me in saying that, in defiance of the Constitution of the
United States, persons have been seized by military authority; that
they were demanded by the civil authority; that the military refused
to deliver them up; and that they were transported under military
guard, and by military authority alone, to this city, and that here the
first steps were taken to put them into the custody of the law. Is it
possible that we can shut our eyes upon these transactions, or reconcile
it to ourselves to become the mere passive spectators of this violent
usurpation of power? What excuse can any man render to his country for
his supineness, in case of the commission of future violations? Can he
plead his ignorance of what is officially communicated to him? Or can he
say he was not warned of the dangerous consequences of these measures,
or of the insufficiency of the laws to prevent them? The whole country
know the fact, and deprecate the consequences, and they know also that
we have received official information of them, and they look to us, as
their Representatives, to use every means in our power to prevent the
recurrence of them. Can any man be willing that his right to personal
liberty shall depend on the will of an executive or military officer? If
he can, he does not deserve to possess the right, and is well represented
by those who refuse to protect it.
In speaking of probable cause of arrest, I confined my observations
to the case of Mr. Alexander. I have seen no message informing us of
the particulars of this case, but it is said that this gentleman, in
his professional character, moved the court at New Orleans for a writ
of habeas corpus, for one of the persons arrested by military orders;
upon the refusal of the General to obey the writ, he either moved, or
was about to move the court for an attachment against him, and was soon
after arrested by order of the General, and transported to Fort McHenry,
at Baltimore; from thence he was brought to this city, and taken before
a judge of the Territory of Columbia, where he was informed that there
was no charge against him sufficient to warrant his arrest, and he was
accordingly discharged.
I now put it to the candor of gentlemen to say whether in this case there
was any probable cause of arrest, or whether the same outrage might not
be practised upon any other citizen of the United States upon the same
principle, by the commander of any fort or garrison; and I will ask,
also, whether the General might not as well have sent him to California,
or Nootka Sound? For he was not charged with any offence upon which he
was liable to arrest. If we have constitutional privileges, we must be
always ready to protect them; and if the privileges now violated are
not worth protecting, where are we to make the stand? When we see a
cancer even in the extremities of the body politic, we must apply the
knife, or the caustic, or it will reach the vitals. There ought to be no
temporizing; for it will become the more inveterate and confirmed, the
longer we delay. Without the most prompt attention to the preservation
of our privileges, we may have the form, but we shall not long have the
substance of a free Government; and of all Governments I think that the
worst, where the sound of liberty supplies the place of the reality, and
a thousand petty tyrants take shelter under the cloak of republicanism.
It is said these men could not be tried at New Orleans; it is not
material to involve in our discussion this question; for if they could
not be tried they might have been imprisoned there, until they were
transferred according to law to the place where a trial could be had; but
it can never be justifiable in a military officer to seize and deport
to any part of the United States, any citizen whom he might suspect of
guilt. If it were admitted, an officer might carry a man from place
to place until he found judges and juries disposed to convict--the
constitution to the contrary notwithstanding. General Wilkinson’s
zeal may have been sincere and his motives pure, and the pressure of
circumstances such as to make him feel justifiable in his conduct; but,
sir, we never can with safety entrust such unlimited discretion to any
military officer; and such conduct, however innocent the motives, ought
to be guarded against by the most severe laws. The second objection
of the gentleman from Massachusetts is, that the laws are already
sufficient. They surely have not been effectual to prevent the abuse of
the privileges of habeas corpus. The writ was issued at New Orleans, and
General Wilkinson in open court took upon himself the responsibility of
refusing to obey it. The writ was issued at Charleston, and the officer
refused to obey it, and the military continued in possession of their
prisoner until they arrived at the place of their destination. The people
of England never considered the writ of habeas corpus perfectly secure
until it was strengthened by the statute of Charles.
Mr. JACKSON had hoped that the gentleman from Delaware would have
contented himself with professing his regard for the rights of the
citizen, and not troubled the House with the long speech which he had
delivered on the occasion. Mr. J. said it gave him alarm to find such
sympathy for men guilty of the most atrocious crimes. Treason in some
countries may be an act of magnanimity, but here it is the worst of all
crimes, because it aims at the destruction of the best Government and the
happiest society in the world.
Mr. J. proceeded to observe that if any officer will violate the
constitution and take the responsibility, it is in vain to make laws
in order to prevent it. But were there no circumstances to justify
Wilkinson? He saw treason lurking on every side. There are cases in which
necessity affords a complete palliation. The President’s Message does not
confirm the declaration of the gentleman from Delaware, that there were
no grounds for a charge against Alexander. [Mr. J. here read Wilkinson’s
affidavit.] Does it not show that they are all linked together? Wilkinson
believed, and no doubt justly, that these persons could not be safely
imprisoned at New Orleans. When it appeared that the judges, at least
one of them, was desirous not to oppose the treason, it would have been
madness in the extreme to have left the traitors there, and especially
when it was expected that Burr would soon arrive with a powerful force.
The relief for abuses of the writ of habeas corpus is in trial by
jury. This is the best relief. But the violator is also liable to
impeachment, and is amenable to the Government. The outrages spoken
of have a remedy--the privilege of the writ is amply secured; if the
constitution has been broken, a law would also have been broken in the
same circumstances. Mr. J. then concluded by announcing his determination
to vote against the reference of the resolution.
Several members were rising to speak, when an adjournment was moved and
carried--yeas 60.
WEDNESDAY, February 18.
_Writ of Habeas Corpus._
The House resumed the consideration of the motion of Mr. BROOM, depending
yesterday at the time of adjournment.
Mr. ELLIOT.--Mr. Speaker, gentlemen have generally been disposed, and I
think with propriety, to consider the subject in two points of view.
First, to examine the merits of the proposed resolution upon general
principles, abstracted from all connection with events that have
occurred, either recent or distant. Secondly, to consider the propriety
of exercising the supreme legislative power, to preclude the recurrence
of events which have sacrificed for a time “the holy attributes of the
constitution,” to borrow the language of the great violator of the
constitution himself, at the shrine of military power.
Upon the first point, gentlemen who have expressed their sentiments,
have been unanimous, or nearly so, in declaring that legal provisions of
the kind now contemplated ought to be made, at a proper time, if those
now existing are insufficient and inoperative. Those who have told us
that the British statutes upon the subject of the writ of habeas corpus
are in force in the United States, or even that it is doubtful whether
they are so or not, need not have told us that they are not professional
men; it was a work of supererogation. No professional man could for a
moment entertain the idea that the statutes of Great Britain are laws
of the United States. The question may be considered as undetermined,
whether the common law of England, or any part of it, which has not been
expressly recognized by our constitution and statutes, is law in the
United States, considered in their federal character; it is at least well
known that upon that question, a unanimous opinion does not exist in the
first judicial tribunal of our country. For one, I do not believe that
the United States, as the United States, possess any code of common law.
I know of no laws of the Union but the constitution and statutes. That
constitution and those statutes have recognized, or rather referred to
certain portions of the common law, and particularly to certain technical
common law terms and rules, as rules of practice in the federal courts;
and beyond those the courts have common law powers. At all events, we
have not adopted any of the British statutes, and particularly, and by
mere implication too, statutes highly penal in their operation. The
doctrine is too absurd to be countenanced, upon serious reflection, by
any man of common discernment. The constitution has declared that “the
privilege of the writ of habeas corpus shall not be suspended, unless
when, in cases of invasion or rebellion, the public safety shall require
it.” But neither the constitution nor your laws have made it a positive
duty of the courts to issue the writ in any particular case; still less
have they secured the performance of that duty by any penal sanctions.
Can it then be improper to provide means to coerce the courts and
officers of the United States in this particular, and to leave to all the
citizens, at all times and under all circumstances, such an invaluable
constitutional privilege? Very few will deny or doubt the propriety of
the measure. But many will say that it is ill timed, and the question of
time naturally introduces us to the second scene of discussion.
It is said that it is improper at the present period to agitate the
question now under consideration. In my apprehension the objection is
a very strange one. The constitution has just been violated by the
commander of your army; violated at the point of the bayonet, and in
more than one or two of its most essential articles. In addition to the
celebrated part of that instrument which prohibits the suspension of the
habeas corpus, except by the supreme civil power, in crises of great
national danger, several of those amendatory articles which peculiarly
secure the rights of the citizen, and the adoption of which, on that
account, were necessary to reconcile the majority of the people to the
original constitution itself, have been disregarded and derided by a
military chieftain. I allude to the following articles, all of which have
been violated in most of their essential provisions:
“ART. 4. The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no warrants shall issue,
but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
“ART. 5. No person shall be held to answer for a capital,
or otherwise infamous crime, unless upon a presentment or
indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia when in actual service, in
time of war or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use without just compensation.
“ART. 6. In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have
been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel in his defence.”
It is obvious that most of the privileges intended to be secured by these
articles to our citizens have recently been denied to some of them, at
the point of the bayonet, and under circumstances of peculiar violence.
It may, indeed, be said that the privilege of the writ of _habeas corpus_
was not denied in the first instance; that it could not be said to be
suspended until the injured persons were placed in a situation which
entitled them to demand it from the judicial power of their country.
It is true that, notwithstanding _inter arma silent leges_, although
the laws were silent amid the thunder of arms, and although a thousand
terrors hovered around those who dared to exercise their professional
duties in support of the constitutional rights of the citizen, a writ
of _habeas corpus_ was claimed and obtained; and I had supposed that
the very singular return which is said to have been made to the writ
was placed on our official files. On searching them, however, I do not
discover it; but it has been published in all the newspapers, and a copy
of it is now before me, which I will read:
“The undersigned, commanding the Army of the United States,
takes on himself all responsibility for the arrest of Dr.
Erick Bollman, on a charge of misprision of treason against
the United States, and has adopted measures for his safe
delivery to the Executive of the United States. It was after
several consultations with the Governor and two of the judges
of this Territory that the undersigned has hazarded this step
for the national safety, menaced to its base by a lawless band
of traitors, associated under Aaron Burr, whose accomplices
are extended from New York to this city. No man can hold in
higher reverence the civil institutions of his country than
the undersigned, and it is to maintain and perpetuate the holy
attributes of the constitution against the uplifted hand of
violence that he has interposed the force of arms in a moment
of extreme peril, to seize upon Bollman, as he will upon all
others, without regard to standing or station, against whom
satisfactory proofs may arise of a participation in the lawless
combination.
“JAMES WILKINSON.
“HEADQUARTERS ARMY OF THE U. S.,
“_New Orleans_.”
Here is a return, not of obedience to the laws, and high reverence for
civil institutions, but of disobedience and defiance. The constitution
is violated in order to preserve it inviolate! Prostrated in the dust
by military power, for the purpose of maintaining and perpetuating its
holy attributes. And what great national object was to be accomplished by
such extraordinary measures? What necessity could exist of seizing one or
two wandering conspirators, and transporting them fifteen hundred or two
thousand miles from the constitutional scene of inquisition and trial, to
place them particularly under the eye of the National Government, when,
if the opinion of the officer himself was correct, it would immediately
become the duty of that Government to suffer them to go at large? In
regard to one of them, the General was uncertain whether he had committed
a major or a minor crime; and the other he explicitly pronounces, as
we learn from our official documents, guilty of misprision of treason,
at all events a bailable offence. He says, “from the documents in my
possession and the several communications, verbal as well as written,
from the said Dr. Erick Bollman, on this subject, I feel no hesitation in
declaring, under the solemn obligation of an oath, that he has committed
misprision of treason against the United States.” Surely it is desirable
to provide against the recurrence of scenes of this description. Or shall
it be admitted that the whim, the caprice, the passion, or the ambition
of a martial chief, may supersede at will the most important checks and
safeguards of the constitution?
Mr. J. RANDOLPH introduced his speech in favor of the resolution by
observing, that he understood the question before the House to be,
whether they would refer to a Committee of the Whole a motion proposing
an inquiry whether further legal provision be not necessary to prevent
violations of the writ of habeas corpus.
How long it had been the fashion to debate the merits of a subject on a
simple motion to commit, it was not material to inquire. He believed it
had commenced the present session.
Mr. R. then observed that he would proceed to answer some objections
which had been yesterday offered against the resolution, and state the
reasons which induced him to support it, come from whence it may. The
first objection which he heard was, the quarter whence the resolution
came. Permit me, said Mr. R., to remind the House that if those who have
been called into public life on account of their professed attachment to
correct principles, ever quit the ground of trial by jury, the liberty of
the press, and the subordination of the military to the civil authority,
they must expect that their enemies will perceive the desertion and
avail themselves of the advantage. Can they who thus desert their old
principles blame others for assuming the popular ground, which they have
abandoned? Whoever stands forward in defence of the constitution, and the
rights of the people, shall have my support _quo ad hoc_.
We have now on our tables official information from the President of the
United States, that the privilege of the writ of habeas corpus has been
denied and the constitution violated. And will you attend to reports from
your Committees of Claims, of Commerce and Manufactures, of Ways and
Means, and leave the constitution and the rights of the people to shift
for themselves? There is abundant time. Congress can meet again after the
fourth of March, and to postpone or delay a subject which affects the
vitals of the State on account of a press of private or local business,
would be a dereliction of our duty and of our oaths. Away then with such
objections.
As to the objection that the subject of habeas corpus is now, _sub
judice_, in the court below, no one thinks of a law which shall have
a retro-active operation. I trust in God that no such _ex post facto_
provision will be agreed to as was foisted into the bill which came from
the Senate, to suspend the habeas corpus, and which was intended in a
side way to cover with a mantle the most daring usurpation which ever
did, will, or can happen, in this or any country. There was exactly as
much right to shoot the persons in question as to do what has been done.
It has been contended that any measures on the part of this House will
give a bias to the proceedings which have been instituted in the courts.
Let me ask, what official notice we have of any such proceedings? But
disdaining such a shelter, though it has been resorted to on the other
side, it is sufficient to observe that a man has only to break the law or
constitution in the beginning of a session, and then forsooth you are to
be foreclosed from legislating on the subject, because an instance has
recently occurred to show the necessity of legislative provision.
Mr. R. said this was the first time in his life that he had heard it
asserted that no law ought to be passed to punish any offence, because
that offence had recently happened. He hoped he should never hear again
such a reason delivered. The Romans, believing the crime impossible, had
no law to punish parricide, till a case occurred, which proved their
mistake. What would you think of Cato or Cicero rising in the Senate of
Rome, and urging such a reason against a law for the punishment of this
crime?
In the discussion of this simple motion to refer the resolution to a
committee for inquiry, which I should have supposed would have been
carried without any objection at all, hints of indemnity, I suppose to
try the public pulse, have been thrown out. Permit me to say that bills
of indemnity are not known to the constitution. If the time ever arrives
when the representatives of the people vote the public money to indemnify
those who break the constitution, we shall indeed become _homines servile
paratos_, and fit for any Government and for any state of society,
however despotic or barbarous. If ever the minions of the Executive, or
the Legislature, whether civil or military, are indemnified for their
outrages out of the public Treasury, the constitution must have arrived
at its last crisis.
It has been insinuated that certain gentlemen in this House lean too much
towards standing armies, &c. Agreed. But in advocating an increase of the
public force, my object was to chastise an insolent foe, not to employ
it against our own citizens and to substitute it in lieu of the civil
authority. My dread of standing armies has been more than a hundred times
increased in consequence of the services to which our present little
force has been put. From such armies good Lord deliver us!
I hope the committee to whom this subject may be referred will not forget
to prevent a man from being embarked on board a shallop, and transported
one thousand or two thousand miles for trial. For I have heard a law
officer of the United States contend that a man may be arrested in one of
the territories, and a trial had in any part of the country, wheresoever
he may be brought. If this abominable doctrine be supported by law, it
is high time to correct it. The constitution, in an article amendatory,
declares that unusual punishments shall not be inflicted. Transportation,
even after conviction, is an unusual, cruel, and severe punishment; but
here it has been inflicted even before a conviction, and before any trial
of the delinquents.
The court of Orleans has the same power as the district court of
Kentucky, which is invested with the powers of a circuit court. If the
district court of Kentucky has jurisdiction of treason, which no man ever
doubted, it follows that the court of Orleans has the same authority.
When the constitution gave to Congress exclusive jurisdiction over a
district ten miles square, it filled the friends of liberty with alarm.
But no man then dreamed that this blot on the map, this nondescript
region, a King’s Bench was to be established for the trial of delinquents
against the Government, collected from all parts of the country. The
inhabitants of this miserable heath, men held in a state of bondage
to which no man would submit, who have no voice in electing rulers of
the country, are destitute of the right of self-government--these men
are made the judges and jurors to try the freemen of America. Were I
on trial, I would challenge the jury. They are not qualified for this
office; they are not my peers. The people here must be the tools and
expectants of ministerial favor. Let them move in their own humble
sphere, but let them never dare to touch a charge of treason.
In the Declaration of Independence, transportation for trial is alleged
as one of the grievances imposed by the British Government on the
colonies. Now it is done under the constitution, and under a republican
Administration, and men are transported without the color of law, nearly
as far as across the Atlantic.
I make no profession of sympathy for the men who have been denounced as
traitors. I argue on the supposition that they are traitors; there is no
need of much exertion in behalf of good men. Attacks on the liberty of
the people are, as has been stated before, made always in the persons of
the vile and the worthless. But when precedent is once established in the
case of bad men, who, like pioneers, go before to smooth the way, good
men tremble for their safety.
Mr. R. observed that he would not say much of the Commander-in-chief.
The least said, till they knew all, was the best. He had always thought
that there were more rogues than one. This business of canonizing and
sanctifying men before they are dead, he did not like. In the State of
Virginia they had been compelled to change the names of several counties.
There was a time in which the name of Arnold might have been preferred,
and perhaps there may now be places in the United States which derive
their names from Burr.
Mr. R. could not admit the jesuitical casuistry which had been displayed
with regard to an oath. If a man breaks the constitution, which they
were all sworn to support, punish him. If the violator be Washington,
Franklin, or Jefferson, Mr. R. would punish him, and he would also say,
that no indemnity ought to be voted for him.
Mr. R. stated at some length the circumstances of the proclamation issued
in England to prohibit the exportation of corn, when Chatham and Camden
were in the Ministry, and who afterwards refused a bill of indemnity.
Mr. R. observed that bills of indemnity were known to the English
Constitution, and requisite in the case stated. But Chatham and Camden,
though both the known and tried friends of liberty, here abandoned the
popular ground, and rested their defence on arbitrary principles, while
the wary Mansfield, an old tory and a high churchman, availed himself
of the advantage, took up the cudgels for the people, and completely
succeeded.
Mr. G. W. CAMPBELL said the first inquiry that naturally presents itself,
in discussing this subject, is, what has occasioned the measure to be
brought before the House at this time? This answer is given--the conduct
of General Wilkinson, in arresting Bollman and others, at New Orleans,
and transporting them to this place for trial, under military orders,
in violation of the constitution and laws of the Union. Suppose this
to be the case, what remedy can the Legislature apply? Does the evil
complained of arise from the want of laws to protect the liberty of the
individuals and punish those who violate it, or from those laws not being
duly obeyed? If the evil arises from a disobedience to existing laws,
no act passed by this House can afford a remedy. Those entrusted with
the execution of the laws may be stimulated to carry them into effect by
this transaction, and to punish the aggressors, but it is no ground upon
which this House can act, and no act that we could pass could, in any
degree, affect the measures that have already taken place. The principal
inquiry therefore appears to be, whether there is any law to punish the
commission of such crimes as General Wilkinson is charged with? There can
be no doubt on this subject; there are laws in every part of the Union to
punish offences. If those persons were seized and carried away without
legal authority, or a just cause that would excuse the act, it will be a
false imprisonment, including in it an assault and battery--an offence
punishable by law in every part of the United States. The offender may
be indicted, and, on conviction, fined and imprisoned according to the
nature of his offence. He may also be sued by the party injured, and
damages recovered in proportion to the injury sustained. This is the
remedy afforded by the law in such cases, and it has been considered
sufficient to correct the evil.
It has not been pretended that General Wilkinson, if he has acted in the
unwarrantable manner stated on this floor, cannot be punished according
to the nature of his offence; and it has already been stated that he is
liable, if guilty, to be punished by indictment, and be made to answer in
damages by civil suit. With regard to the violation of the constitution
said to have been committed by General Wilkinson, in not obeying the writ
of habeas corpus issued by the judge at Orleans, I may be permitted to
observe that this part of the subject does not appear to have been well
examined by those who have spoken in favor of the measure. The words
of the constitution on this subject are, art. 1. sec. 9: “The privilege
of the writ of habeas corpus shall not be suspended, unless when, in
cases of rebellion or invasion, the public safety may require it.” This
provision evidently relates to Congress, and was intended to prevent that
body from suspending, by law, the writ of habeas corpus, except in the
cases stated, and has no relation whatever to the act of an individual
in refusing to obey the writ--such refusal or disobedience would not
certainly suspend the privilege of that writ, and must be considered in
the same point of view as the violation of any other public law made to
protect the liberty of the citizen. In the present case, however, if
there was a refusal to obey this writ, it was a violation of an act of
Congress, establishing that part of Louisiana where this transaction took
place into a Territory, which expressly declares that the inhabitants of
the said Territory shall be entitled to the benefit of the writ of habeas
corpus, and it is punishable as such; but it cannot be considered a
breach of the constitution in any other respect than the violation of any
public law made in pursuance of that constitution would be, and of course
cannot require legislative interference. With regard to the other three
articles of the constitution, to wit: the 4th, 5th, and 6th amendments
thereto, said to have been violated by the conduct of Wilkinson, a very
brief examination will show that there are provisions by law in every
part of the Union to enforce obedience to those parts of the constitution
and punish those who violate them. The first of these articles merely
declares the right of the people to be secure in their persons, houses,
&c., against unreasonable searches, seizures, &c.; and that no warrant
shall issue, but upon probable cause, supported by oath or affirmation,
&c. The first part of this only can relate to the present case, for
it is not alleged that any warrant was issued; and every law existing
in society for punishing offences against the persons and property of
individuals, is calculated to enforce obedience to this provision. If
a man is seized without legal authority or a just cause, cannot the
offender be punished? He certainly can--and in what other way could
you enforce obedience to this provision? The other two articles before
mentioned can certainly have no bearing on the question before the House,
they merely relate to the manner in which, and the place where offenders
shall be tried--they are directory to the Legislature and to courts of
justice; and it is not stated that either the one or the other have acted
contrary to their provisions. No attempt to try these persons was made
by General Wilkinson; he sent them to this place, they were delivered
to the civil authority, and their case is now under legal adjudication.
The courts of justice are the proper tribunals to decide, according to
existing laws, where they are to be tried and in what manner. We are
told, however, sir, it is necessary to make provision by law to enforce
obedience to the writ of habeas corpus, to punish those who may refuse
to grant it. With regard to the latter case, there is not the least
ground of complaint--the writ has not been refused in any instance when
demanded. It was issued at New Orleans, and also at Charleston, and
indeed it is not pretended the civil authority have on any occasion
violated this writ. It has, on the contrary, yielded the most prompt
obedience to it in every instance.
If it was made to appear to me that there were not provisions, by
existing laws, to enforce obedience to the writ of habeas corpus, and
to punish the violations of it, I would be among the first to make such
provisions. But this has not been shown, and cannot, I presume, be
proved to be the case. In every State, and in every Territory, as far
as we are informed, there are laws to enforce obedience to this writ,
and to regulate the mode in which it shall be obtained and prosecuted;
and, by the thirty-fourth section of the act to establish the judicial
courts of the United States, it is declared that “the laws of the several
States, except when the constitution, treaties, or statutes of the United
States shall otherwise require or provide, shall be regarded as rules
of decision in trials at common law in the courts of the United States,
in all cases where they apply.” This provision must relate to criminal
as well as to civil cases. You have, therefore, the same provisions, at
least, to enforce obedience to the writ of habeas corpus in the courts
of the United States, that there are in the respective State courts;
and it has not been shown that these provisions are defective in the
State courts. Gentlemen have not pointed out an instance in which this
writ can be violated with impunity. In every case that can be stated,
the aggressor may be punished under existing laws; and that is the only
mode in which you can enforce obedience to this writ, or to any law.
You cannot prevent, absolutely, the commission of a crime; you can only
punish the offender, and thereby discourage others from committing
similar offences. You cannot prevent a man, while at liberty, from
exercising his physical strength; and you can no more prevent him, by
law, from violating the writ of habeas corpus, than you can prevent one
man from striking another, or from seizing him, and carrying him away by
force. All you can do, in either case, is to declare the punishment that
shall be inflicted on such offenders.
The gentleman from Vermont (Mr. ELLIOT) has told us he has not discovered
a tittle of evidence to show that the persons have committed treason, and
that their crime, at most, can only be misprision of treason. Although we
are given to understand that that gentleman is a professional character,
I must beg leave to differ with him on this subject. If treason has been
committed by the author of this conspiracy, those persons, if guilty of
any crime, must be guilty of treason, and not of misprision of treason
only. They aided and abetted in carrying into effect the project. They
carried and delivered a letter, knowing its contents, from the principal
conspirator to General Wilkinson, for the purpose of engaging him to join
in this undertaking. They used their influence to corrupt him. These must
be considered overt acts, giving aid and comfort to the enemies of the
nation, and will make them principals in the treason, if such a crime
has been committed; for, in this crime, there can be no accessories--all
who are concerned are principals. Misprision of treason is a distinct
and separate offence. It is merely the neglect or omission to make known
to the proper authority the treason that has come to the knowledge of
the party. It supposes that no act has been done by the party charged;
that he has given no aid or assistance whatever to the enemies of the
country, but has merely acted wrong, mistaken his duty (which is the
meaning of the term) in not discovering, in due time, the acts of treason
that have come to his knowledge, and is, on that account, guilty of
high misdemeanor. It was not, however, my wish, or intention to give
any opinion on the merits of this case. I am willing to leave it to the
decision of the constitutional tribunals. But, gentlemen seem as if
they were determined to discuss the guilt or innocence both of General
Wilkinson and the prisoners. This I consider altogether improper, as it
might give an undue bias to the public mind on this subject. For this
reason also, sir, I am opposed to referring the resolution to a select
committee.
Mr. HOLLAND.--It is said by gentlemen, that, by the conduct of General
Wilkinson in sending Bollman and others from Orleans to this city, there
is a flagrant violation of the constitution, and a crime committed
that should be punished as a felony, and the purpose of making an
offence of this kind a felony is the object of the present motion.
That these persons may have been deprived of certain rights secured by
the constitution is a possible and probable case; for every illegal
deprivation of right secured by law under the constitution, may be said
with equal propriety to be a violation of the constitution. But, sir, so
far as respects the habeas corpus, the suspension of it applies to the
Legislature, and not to persons. The constitution says it shall not be
suspended but in case of rebellion, or when the public safety requires
it. This prohibition manifestly applies to the Legislature, and not to
persons in their individual capacity. If, therefore, the Legislature
suspend the habeas corpus when there is no rebellion, or when the public
safety does not require it, they would be guilty of a violation of it.
But how has General Wilkinson violated it? He has no power to issue or
detain the writ. The issuing of the writ of habeas corpus is the duty of
your judges, and they have in all cases issued the writ. It was issued
in the present case at Orleans; and issued at this place in behalf
of these men. Your judges have at all times in this particular been
ready to do their duty. And if so, where is the necessity of coercing
them, as proposed, by fines and penalties? Sir, the necessity does not
exist. If General Wilkinson has disobeyed this mandatory writ, he stands
in contempt, and your judicial courts have already power to punish
contempts. If he has violated any law, he is liable to be punished. If
he has deprived any persons of their rights secured by the constitution
or by the law, he has done it upon his own responsibility. The laws are
ample, and will give redress for every injury. Let these persons bring
their actions, and if it should appear that they are innocent, and that
the General has wantonly deprived them of their rights, an honest jury
will give exemplary damages; but if on trial it should appear that they
were guilty persons, and that the public safety required their being
transmitted to this place, they will not, they ought not, recover a
single cent.
Mr. ALSTON said this proposition is brought forward in a most imposing
shape, and it is undoubtedly one to which no one would object, if brought
forward at a proper time, if there were not questions depending on which
it is calculated to operate, and if there existed the least probability
of any thing final being done upon it, before the close of the session.
The inquiry is proposed to be made by a select committee; the mover of
the resolution will of course, according to the mode of proceeding in
the House, be chairman of that committee, and the report will in all
probability be made at too late a period of the session, to admit of a
full discussion, and an effect be produced by the report very different
from that which would result from a full investigation of it. May not
its effect be, to cover a decision which the gentleman knows is about to
be made? To make it appear that those who make that decision have the
voice of the people with them? The first course proposed, of submitting
this proposition to a Committee of the Whole, had a tendency to produce
an immediate investigation of the subject; an agreement to the present
course will have the contrary effect, of delaying it. This proposition
really presents a strange appearance. Gentlemen, heretofore the vehement
advocates of energetic measures, are now converted into their opponents.
This, however, is not strange to an accurate observer of human nature;
opposition is opposition still, and let it come from what quarter it
may, the general clamor is a regard to the liberty and rights of the
citizen. But surely this of all species of protection is the strangest!
The protection of men engaged in violating the rights, the liberties,
and constitution of their country! Any judge, says the gentleman, who
shall dare to refuse to grant the writ of habeas corpus, or officer who
shall refuse to obey it, shall be mulcted in heavy damages. What does
this amount to? If any person shall even see treason committed before his
face, or Aaron Burr marching at the head of the marine corps, he shall
not dare to arrest them; but shall, in the first instance, go before a
judge, or render himself liable to be mulcted in heavy damages.
Mr. J. RANDOLPH.--Where are we? Are we in the Congress of the United
States? Is this the House of Representatives of this Union, and are we
to hear on this floor the doctrine advocated that a flagrant violation
of the constitution is to be remedied by an action of damages as in a
common assault and battery? Is it possible that such can be the idea of
this House; such our respect for the constitution, for the institutions
we are all sworn to support, and which, if we do not support, whether
our treason be committed under the banners of Aaron Burr, or under the
cover of law, we are equally traitors? Is this House ready to sanction
the doctrine that an open and avowed contempt of the civil by the
military authority, shall be considered as nothing more than a common
violation of law? A refusal to respect the writ of habeas corpus by a
civil officer, is a high misdemeanor. Much more is it a misdemeanor,
when committed by a military man, and more especially if committed by
the commander-in-chief of an army. With regard to plots and plotters,
conspiracies and conspirators, I am not their friend. If they exist,
I would deal with them according to law, I would give them sheer law;
they should have no more at my hands. Do gentlemen, however, pretend to
say that you can proceed against a man otherwise than according to law?
I stand here as the advocate of the law. Laying aside the question of
guilt, I say proceed according to law. If you do not do this, you may
first incarcerate a man, and afterwards summon a _venire_ to try whether
the act is justifiable. It is said dead men tell no tales. I will put a
case. I will suppose Aaron Burr a conspirator against the United States;
a traitor. Let him die. If so, I would hear the sentence pronounced with
pleasure.
But suppose another thing--suppose a conspiracy has been going on for
several years; suppose a person has been for several years concerned in
it, and to cover himself from suspicion he outherods Herod, and because
his weak nerves cannot endure the sight of a traitor stabs him. Is this
to be justified? It is well known that a conspiracy to separate Kentucky
from the Union is no new thing, and no zeal which any man concerned in it
may now manifest can throw off suspicion from his shoulders. These are
the plain facts.[49]
I will put another case. If a man charged with a crime committed in a
territory can be carried to a territory two thousand miles distant by
a military guard and there tried, what is the situation, Mr. Speaker,
in which you stand? You yourself may be arrested; for you are in a
territory, and the little remnant of the army here may be charged to
carry you to New Orleans. Your privilege will not extend to felony or to
a breach of the peace.
I will put another case. A member of this House may be carried to the
marine barracks. You may issue your writ, and your Sergeant-at-Arms
make return that the member is carried to Orleans; and as accidents
will happen, he may be knocked over by the boom, and there is an end of
him. Will you sit down contented with such a doctrine, that the civil
authority shall be put at defiance by the military, and the citizen
shipped off to New Orleans, there to be tried by a dependent tribunal?
I avoid saying any thing as to plots. I have no doubt, however, of this
plot, and I have no doubt of the existence of a plot also in 1788, and
down to the year 1795. But in what way has every free people become
slaves? The common recipe is--take a _quantum sufficit_ of plots and
of military force, always kept ready for the purpose, and the end is
accomplished; and I say this must, if you give sanction to such acts,
be the death of your Government. Has any revolution taken place in the
affairs of France, which was not preceded by a plot? Are we sure that
time and chance, which happen to all men and all nations, may not happen
to us?
One word on the subject of the quarter from which this motion comes.
An attempt is made to sound the tocsin, and to discipline the House under
the banners of party, on a constitutional question. Where the violation
of the constitution is not pretended to be denied, it is expected that
the House is to be rallied under the banners of party. The gentleman
who brings forward this proposition is charged with the sentiments he
entertained some years since; but it is the misfortune of this argument
that it cuts two ways; if you resort to the sedition law, the alien law,
and other acts of those days, you have no right to refuse gentlemen now
the benefit of their principles. The people of this country, after two
or three juggles of this kind, will be apt to conclude that federalism
or republicanism depends on being in or out of the Government; that
those who are in are good federalists, and those out republicans; they
will find this out, if they do not suspect it already. A few such
instances, and the scales will fall from their eyes. You quote the most
detestable instances of a violation of a law which have taken place in
time past--no, this is the most detestable of all--and yet you gravely
tell the people that you will not listen to men who advocate rights thus
infracted. The people of the United States will eventually listen to
them, if you pursue this course; and it is because I do not wish them
to listen to them, that I do not wish to see them foremost in such a
cause as this. It is a disgrace to the old republican party, if indeed
it is yet in existence, that the writ of habeas corpus should find its
first defenders in that quarter. There is on this subject one melancholy
fact, and that is--that in 1797 the federalists were in a majority; in
1807 the republicans are in a majority--has the generation of 1798 passed
away? No; the same people that were in 1798 federalists are in 1807
republicans, and that is the clue to the thing; all those who swim with
the tide come over to the stronger side.
In my mind it is high time to make a provision for a complete _casus
omissus_ of power delegated by the constitution. You have found members
this session voting to make a violation of a provision of the slave bill
death, on the broad principle of natural right; and yet would you do less
for a violation of the liberty of your citizens, when you are bound to
protect them, not only by natural right but by conventional institutions
and your oath? If a military man should take, I will not say a member
of this House--but any one of the miserable citizens who inhabit this
place--and escort him under military guard to New Orleans--I say the
military man who would do such a thing ought to be precipitated from
the top of the Capitol. I would teach the military that they are to be
subordinate to the civil power, and that if they undertake to violate
the civil institutions of their country, they should pay the penalty
of their lives. If you do not guard the people from such an excess of
military power, the time will come when you will be kicked out of doors
at the point of the bayonet. We have seen the Legislature of a nation
as enlightened as ours, treated in this way. There is one institution
on which I fear we have placed too great a reliance. I have been always
attached to the press, and desired to see it free and unfettered; and I
have gone uniformly with those who supported this opinion, even in the
time of alien and sedition bills, and not merely in a period of sunshine.
Experience has proved to us that the press in the hands of a tyrant may
become one of the firmest supports of his authority; and if there shall
be a collision between the press and the bayonet, it needs no prophetic
spirit to say which will kick the beam.
Mr. M. WILLIAMS said he would state one or two reasons why he should
vote for committing the resolution. As he understood the subject, the
only consideration at present was, whether it was necessary to make an
inquiry into the expediency of amending the laws on this subject. It had
been endeavored to make this a party question; he considered it of no
importance from what quarter a proposition came. If he thought it right,
he should vote for it. The gentleman from Tennessee has observed that the
constitution has made an ample provision on this subject. It appeared to
him that the constitution had only secured the writ of habeas corpus; no
penalty had been attached to its violation, and hence the necessity of
some legislative provision to answer this purpose. The same gentleman
has observed, that there is no necessity for legislative provision, as
the statute book is already crowded with cases; but, Mr. W. said, he
believed there was no legislative provision for the violation of the writ
under the authority of the United States. It had been also said, that a
provision under the Government of the United States would abridge the
rights of the States; but, Mr. W. said, he could not see how this remark
applied. He did not wish for any abridgment of those rights. The States
undoubtedly had a right to pass laws relative to the execution of the
writ within their jurisdiction, and Congress had a concurrent power to
regulate it under the jurisdiction of the United States. Mr. W. said, in
his mind many arguments had been urged which were irrelevant; such as
the conduct of the commandant at New Orleans, and of the persons brought
before the court. It had been said that this was an improper time to
bring the case before the Legislature; but, gentlemen would find that
new cases had very frequently given rise to new laws; and the present
case clearly showed the necessity of some new provisions. Whether the
persons implicated in this conspiracy had committed treason or not, was
not the inquiry; the only question was, whether any further legislative
provision was necessary to secure the writ of habeas corpus. He would
ask, whether in this instance the constitution had not been violated by
the interposition of the military authority? Whether the persons arrested
were guilty or not, was not for the House to say. Mr. W. said he did not
think that the reference of this resolution would have any influence on
the court; as an injury by the House would impose censure neither one way
nor the other.
TUESDAY, February 19.
_Writ of Habeas Corpus._
Mr. BIDWELL.--The motion, as now amended, embraces two objects: to
provide additional penalties for the security of the privilege of habeas
corpus, and to define the powers of the Supreme Court as to issuing
writs of habeas corpus. It is proposed to appoint a select committee to
inquire into the expediency of making these provisions. Each member of
this proposition is expressly predicated, by its mover, upon particular
recent occurrences; the one, upon the conduct of General Wilkinson, in
seizing certain persons at New Orleans, and sending them to the seat of
Government, under military arrest; the other, upon the late determination
of a majority of the Supreme Court to exercise jurisdiction in a case of
habeas corpus, for the discharge of some of those persons. With respect
to both of these objects, and also as it respects the propriety of
referring the question to a select committee, I am opposed to the motion,
and hope it will not be adopted.
But, sir, is it necessary or proper, if we had leisure, to pass a law
on the subject, at the present time? The principal argument in favor of
it has been drawn from the recent transactions at New Orleans. We have
been told that the constitution has been violated, and that Congress
ought to act on the occasion; otherwise, we may become familiarized to
encroachments on the constitution, until all respect for that sacred
instrument may be lost. Sir, this argument is a two-edged sword. It cuts
both ways. If, for a temporary purpose, the trumpet of alarm is sounded,
when there is no real danger; if, by way of appeal to the public, we
are urged to legislate upon a suggestion that the constitution has been
violated when there has been no such violation, or none but what the
ordinary course of law is competent to correct and redress; we may be
familiarized to charges of that nature, until we become insensible,
indifferent, and disinclined to interpose, when legislative interposition
may be really necessary.
For the sake of argument, let it be admitted that a constitutional right
has been infringed. Does it follow that Congress ought to legislate on
the occasion? Take the instance which, in order to bring the subject home
to ourselves, has been put. Suppose a member of this House, in contempt
of his constitutional exemption from arrest, except for treason, felony,
or breach of the peace, is arrested on civil process, and imprisoned
in this territory, or carried out of it, if you please, under arrest;
would Congress feel themselves called upon to pass a law, in consequence
of such infringement of a constitutional privilege? No, sir. The legal
remedies already provided would be sufficient. The party injured might
sue out a habeas corpus for his discharge, in the first place, and
afterwards commence his action for damages, to be assessed by a jury,
upon a full consideration of all the circumstances of aggravation or
alleviation; and the officer or person who did the injury would be still
further liable to be indicted by a grand jury and tried and punished by
the proper tribunal. These, sir, are the existing provisions of law.
And I am not willing to disparage the right of jury trial, so solemnly
recognized in the constitution, by treating it as inadequate to give
relief. It is a privilege by no means inferior to the habeas corpus. It
is one, indeed, without which that cannot be enforced. It is a legal
and constitutional remedy; and no friend to our laws and constitution
will attempt to degrade it. I am not pretending that it is perfect.
Imperfection is stamped upon every thing that is human. Courts and juries
are not infallible; they are not inaccessible to those passions and
prejudices which are common to men in all situations. But they are not
more liable to the influence of erroneous or improper considerations than
legislatures are. No safer institution than that of trial by court and
jury, has been devised to redress infractions of personal rights. It is
open to all persons who think they have sustained an injury, and is as
free from objection as the lot of humanity will admit.
Has any officer refused to serve a writ of habeas corpus? No such refusal
is pretended. Has any person, on whom a writ of habeas corpus, from a
court or judge of the United States, has been served, refused to obey
it? No instance of such disobedience has been officially communicated
to us, according to my understanding and recollection of the official
communications. It has, I am sensible, been charged upon General
Wilkinson, and, in proof of the charge, a gentleman from Vermont has
read, from a newspaper, that officer’s return to a writ granted by
the Territorial court of Orleans. For it is to be observed, that the
application was not made to the court of the United States there, but to
that of the Territory. The General’s return was expressed in the language
of a soldier, and not of a lawyer. It did not state, with technical
precision, whether Dr. Bollman was within his control at the service of
the writ. I may be incorrect, for I have not particularly investigated
the subject, and it may not be very material, but I understand the fact
to have been, that Dr. Bollman had been sent from New Orleans, on his way
to this city, when the writ was served on General Wilkinson. This appears
from the further proceedings of the court, as published in the same
paper, from which the first return has been read.
[Here a message from the President was received and read, after which Mr.
B. proceeded.]
When the message was announced, I was noticing an extract from the
proceedings of the Territorial court at New Orleans, which I now beg
leave to read.
“In the Superior Court of Orleans, December 26th. In the
matter of the _Habeas Corpus ad subjiciendum_, directed to
General Wilkinson, to produce the body of Dr. Erick Bollman;
on motion of Mr. Livingston (in behalf of Mr. Alexander, the
attorney upon record) that General Wilkinson be required to
make a further and more explicit return to the said habeas
corpus, or show cause to-morrow morning, at the opening of the
court, why an attachment should not issue against him: _It was
ordered_, that the rule be granted, and that a copy thereof be
immediately delivered by the sheriff to General Wilkinson. On
the next day, on motion of Mr. Duncan, in behalf of General
Wilkinson, and on reading the following, as an amended return
to the above-mentioned habeas corpus:
“The undersigned, commanding the Army of the United States,
takes on himself the responsibility for the arrest of Dr. Erick
Bollman, on a charge of misprision of treason against the
United States, and has adopted measures for his safe delivery
to the Executive of the United States. The body of the said
Erick Bollman is now, and was at the time of the writ of habeas
corpus, to which this return relates, out of the possession,
power, or custody of the undersigned.
‘JAS. WILKINSON.’
“_Ordered_, That the same be received and filed, and the rule
_nisi_ of attachment be discharged.”
The fact is here stated as I have understood it. Dr. Bollman was on
his passage to this place, before the writ of habeas corpus, sued out
by his friends, was served on General Wilkinson; whose transaction,
therefore, in whatever light it is to be viewed, in relation to the laws
and authorities of that Territory, was not a disobedience to this writ of
habeas corpus, but a military seizure and transmission of a person from
New Orleans to Washington, under an avowed responsibility, and upon the
principle that it was necessary for the public safety. At any rate it
does not appear to have resulted from a want of penalty, or any defect
whatever in the habeas corpus laws of that Territory, whose courts and
laws, and not those of the United States, were resorted to for relief.
One case has been mentioned in the newspapers, in which a writ of
habeas corpus, issued under the authority of the United States, was not
obeyed. An officer at Charleston, South Carolina, it is said, instead of
producing Dr. Bollman, in obedience to a writ from the district judge,
transmitted him to Washington, because the orders of General Wilkinson,
in general terms, directed his transmission, without any particular
instructions respecting a habeas corpus. The officer seems to have
considered it his duty to obey the orders of his commander, without
regard to any interfering lawyer or civil process. I am of opinion that
he erred, and has exposed himself to punishment, as well as to damages.
But his error does not appear to have been wilful, nor to have resulted
from any defect in the law, but from an erroneous military principle.
The same principle, however, has, at the present session, found very
respectable advocates on the floor of this House. Yes, sir, in the
case of Captain George Little, gentlemen held that a military or naval
officer is not bound to take notice of any law in opposition to, or even
in explanation of, the orders of his superior. It will be recollected
that I opposed that doctrine, although I admitted that an officer, civil
or military, acting contrary to law, through misapprehension of its
meaning in a doubtful case, or in some great emergency not provided for
by law, might be equitably entitled to indemnification. Damages had been
recovered against Captain Little, for doing an illegal act, in pursuance
of orders from the late President of the United States, and Congress have
passed a law to indemnify for those damages. The Executive orders, under
which he claimed, taken in connection with the law, which was referred
to in the orders, did not appear to me to warrant the transaction,
which has been adjudged to be illegal, and for which the damages were
recovered. I did not, therefore, vote with the majority in favor of his
claim. But gentlemen who supported it on the ground I have mentioned,
will, if they are consistent, be so far from inferring a necessity for
further penalties, from the case of Captain Kaltiesas at Charleston, that
they will be ready to grant him an indemnification, if he shall be found
to have acted honestly, according to his understanding of his orders.
By indemnification, I do not mean an act of indemnity, in the British
sense of the term, pleadable in bar both to an action for damages and
to a prosecution for an offence. Such an act might here be considered
unconstitutional and void. A remuneration for damages incurred has been
the mode of indemnification adopted by our Government.
On this subject an example has been quoted for our instruction, from
English history. It was a proclamation, issued in derogation of law, by
the King, with the advice of the celebrated Lords Chatham and Camden,
on a great national exigency. The measure was generally approved and
applauded throughout the nation. The Parliament were ready to sanction
it. But, instead of accepting an act of indemnity, those Ministers
undertook to justify it, as legal, upon the principle of necessity. In
that they erred. When the question came before the court for judicial
consideration, Lord Mansfield decided against the doctrine of his great
political rivals, and I think his decision was correct. As a judge or a
juror I should have condemned them. But, sir, if instead of justifying
the proclamation, as legalized by State necessity, the Ministers had
acknowledged their responsibility for it, and thrown themselves upon
the justice of their Government, had I been a member of the British
Parliament I would have voted them an indemnity. Their error consisted,
not in doing an illegal act for the public good, but in doing it under
color of legal authority, when the law did not authorize it. Whether
General Wilkinson’s conduct has been correct or erroneous in other
respects, he has not fallen into this error of those celebrated English
statesmen. He has not pretended that, in seizing the persons alluded
to and transmitting them to the seat of Government, he was justified
by orders or by law. He has not cast the responsibility upon any
other officer or department of Government. He has explicitly assumed
it all to himself, and put himself on the candor of his country for
indemnification. If it shall appear that he has acted honestly, for the
safety of the Army and the preservation of the Union, under the pressure
of such urgent necessity as he professes, I trust he will be indemnified.
On the contrary, if it shall turn out, upon future investigation, that
he has acted unnecessarily and wantonly, from motives of malice or
resentment, he will undoubtedly be left to suffer the consequences. I
give no opinion of the merits of his conduct. I hope the House will
not, at present, give an opinion, or adopt any measure calculated to
have a bearing on the question. It is premature. We have not sufficient
information. We have not a statement of all the facts, nor the evidence
in support of the facts, which are stated. In due time an inquiry will
be proper, and doubtless will be instituted. General Wilkinson will
probably demand it himself. But it would be unfair and unjust, as well as
impolitic, to anticipate it.
Mr. QUINCY.--So long as an intention appeared to make this a party
question, I had no inclination to intermeddle with it. The subject
seems to me to be of too high a nature, and too deeply to be connected
with the rights and liberties of us all, to be examined under those
narrow and temporary views which party spirit necessarily introduces.
Since the discussion has assumed a milder aspect, I shall offer a few
considerations; limiting myself to a very simple and brief elucidation of
the subject, in a point of view which no other gentleman has taken of it,
as yet, on this floor.
I cannot agree with those gentlemen who maintain that in the arrest and
transportation of Bollman and Swartwout, they can see no violation of
the rights of individuals. The privileges of the constitution are as
much the inheritance of the humblest and the most depraved, as of the
most elevated or virtuous citizen. To be seized by a military force,
to be concealed and hurried beyond the protection of the civil power,
and to be sent a thousand miles for trial, in a place where the crime
charged was not committed, I humbly conceive are violations of individual
rights, and of the constitution. I am not, however, prepared to say, that
in no possible case they can be pardoned; nor, with the gentleman from
Virginia, (Mr. RANDOLPH,) that in no case, I would consent to indemnify a
military commander for making such an arrest. A case might exist when it
might be the duty of a legislature thus to indemnify. I agree, however,
that it must be an extreme case, and that the party to be indemnified
must evince that he had himself no voluntary agency in producing the
state of things which made such an unconstitutional exercise of power
necessary to the safety of the State. I give no opinion concerning the
conduct of General Wilkinson. The events which happened at New Orleans
have no other relation to the subject before the House than this: they
have turned the attention of reflecting men in this nation to the nature
of the security they possess against similar violence; and, in common
with other reflecting men, it has become our duty not only to understand
the nature of that security, but also to supply, as soon as possible, any
deficiencies we may discover in it.
The only question is, Have this people the privilege of the writ
of habeas corpus secured to them as fully and effectually as the
constitution intended, and as wise and prudent men ought to desire? I
answer, unequivocally, they have not. So far as relates to cases under
the exclusive jurisdiction of the United States, we have virtually no
writ of habeas corpus. And for this plain reason, that we have none of
the sanctions of the writ; we have none of those penalties, without which
the writ of habeas corpus is a dead letter: particularly in all cases in
which the state of party passions, or of any predominant power, leads to
the oppression of an individual.
The writ of habeas corpus and the penalties by which it is enforced,
and in which the great benefit of the privilege consists, are distinct
things in their nature. The former was known to the English common law,
and although, at all periods of English history, it was held a very
precious right, yet were its provisions found wholly inefficacious
against arbitrary power, until after the statute of Charles II. called by
Englishmen their second Magna Charta. This statute gave penalties unknown
to the common law. If a judge refuses to grant, or an officer refuses
to execute the writ, he is liable to a penalty of five hundred pounds
sterling, and similar sanctions annexed to other neglects of the precept.
The House will observe, that all these penalties are securities given to
personal liberty, additional to those which exist at common law, and are
not substituted for them. These penalties are annexed for disobedience to
the writ, not as indemnification for the injury. All the other remedies
against the judge, or the party imprisoning, remain unimpaired.
The question recurs, does the Federal Constitution, by securing to
us “the privilege of the writ of habeas corpus,” secure to us those
sanctions of the writ which constitute in England its characteristic
security? If the constitution had re-enacted the statute of Charles,
there could be no doubt. But will gentlemen seriously assert, that a
penal statute of another country can, by construction, be declared the
law of this, so as to make our citizens obnoxious to its penalties?
If that statute be our national law, how was it obtained? Re-enacting
statute we have none. And “the United States, as a Federal Government,
have no common law,” if we give credit to declarations daily made upon
this floor, or respect the opinions of one of the highest law authorities
in this nation. I refer to the opinion of Judge Chase, in the case of the
United States against Worrall. 2 Dallas, 394.
This view of the subject is certainly sufficient to satisfy this House,
that their security for this great privilege is, at least, uncertain; and
is not this reason enough, for this Legislature to commence an inquiry
into the nature of that security, and the additional provisions it
requires? This at present is the only question.
But the gentlemen ask “What need of further penalties? If the judge
refuses the writ, is there not impeachment? Against the person illegally
imprisoning another, is not an action for damages?” I answer: Both
these securities for the personal liberty of the citizen existed, and
do still exist in England, as fully as they do here, yet was it ever
before heard that these were reasons against enacting that celebrated
statute of Charles, or were ever urged as evidence that its provisions
were needless, or useless? The penalties of that statute are guarantees
of the liberties of the citizen, additional to those which result from
the law and the constitution. The principle of that statute is, to rest
satisfied with nothing short of the actual liberation of the person
from illegal imprisonment, in the shortest time possible. To this end
all its provisions tend. It will not leave a citizen to languish in
prison, in expectation of the result of the slow progress of legislative
inquisition, or for the purpose of ultimately qualifying him to receive
a heavy compensation in damages. Impeachment is always a dubious, and
an action for false imprisonment often an inadequate security for
the observance of the writ of habeas corpus. Great violations of the
privilege of this writ can never happen, unless in times of great
violence. In such times, what hope of an impeachment against a judge who
abuses his authority in coincidence with the views of a prevailing party?
And as to damages, is personal liberty to be estimated by money? And if
it were, what certainty that the person guilty of the illegal arrest will
be competent to pay the damages recovered? In the case of seizure by a
military power, can it ever be expected, from the universal pecuniary
deficiencies of the soldiers, that damages will be realized, even should
the civil arm be competent to enforce an execution?
The penalties affixed by the statute of Charles, on the contrary, assure
the obedience of the courts and officers of justice, independent of all
party influences which may happen to prevail in the nation, and secure
personal liberty by pecuniary perils, suspended over the heads of men,
whose situation in society is such as, in general, makes the attainment
of the penalty certain, should it be incurred. Upon the whole, those
who oppose the present motion seem to me to be reduced to this dilemma;
either they must acknowledge that they are content that the citizens of
these United States should possess less security for their liberties than
the subjects of the law of England enjoy for theirs, or they are reduced
to the necessity of adopting the doctrine that the statute penalties of
another country may by construction become the laws of this nation; than
which, I can conceive nothing more monstrous or absurd.
In this discussion it has been my wish to avoid all notice of the party
and personal invectives which have been uttered. The question is too
important to be mingled with feelings and passions of these descriptions.
And the circumstances of the times and of the nation, seem to me to claim
from us a contempt for these local and ephemeral distinctions.
Mr. NEWTON.--I presume I may be permitted, notwithstanding the motion
has been tried, to go fully into the subject before the House. I hope
this House will not indefinitely postpone it. If ever there was a subject
within the attention of an enlightened Legislature, it is the subject
before us. Every subject that regards the liberty of the citizen should
be received with reverence and respect by the votaries of liberty. If we
can better the situation of the people of the United States, and keep
from them, under all circumstances, the hand of oppression, it is our
duty to do it, and to pay attention to whatever is likely to eventuate
in such an issue. I shall not consider this case as the basis of an
impeachment. The only true inquiry at present is, whether the writ of
habeas corpus is sufficiently fortified by legislative provisions? I will
not commit my understanding so far as to decide on the conduct of the
Commander-in-chief. If he has done wrong, let him be answerable to the
laws of his country; much less will I talk of indemnifying him. For this
reason, because the jury before which the case may come, may, under such
circumstances, have regard, not to his circumstances, but to the Treasury
of the United States.
My friend and colleague, from Virginia, has offered a most important
amendment to this resolution. The Supreme Court of the United States,
after having this all-important case for a long time under advisement,
and after an argument from the bar, are again afloat on the ocean of
uncertainty, have started some new doubts, and have asked the gentlemen
of the bar to come forward with a new argument. If this is the fact,
does it not show the necessity of our attending to the subject; and of
some new legislative provisions upon it? I am for defining the power of
our courts. I wish to understand the extent of their prerogatives; and
particularly whether they have appellate jurisdiction in criminal cases;
before whom criminals are to be brought; who are to grant writs of habeas
corpus, and admit to bail?
These are all considerations of importance, and constitute the reasons
which induce me to vote for referring this resolution to a select
committee. But, say gentlemen, we cannot mature this subject this
session. Perhaps so; but is this a sufficient reason for not commencing
the investigation, for comparing our ideas on the subject, and going
forward as far as we can in our progress towards a decision? I, for
one, shall always be in favor of an inquiry into subjects that have a
reference to personal liberty.
This subject has been spread over an immense extent of ground. The single
point, however, at issue, is, whether we will commit this resolution, in
order merely to obtain correct facts and information, which shall present
the subject in such a form as shall enable us to act understandingly upon
it. I am not at present in favor of acting definitively upon it; but
merely for inquiry. So circumstanced, I presume our proceedings cannot
injure any individuals implicated in this business, as nothing we can do
can have a retrospective effect. These are my reasons for voting in favor
of the present motion.
Mr. J. RANDOLPH.--There has been a dispute in the world from time
immemorial between wit and dullness--between imagination and judgment.
So we have been told, though some who cultivate the sceptical philosophy
dispute it. But this impression has been so long attempted to be made,
that there is not a precise or formal coxcomb that does not on the score
of dullness arrogate to himself judgment and profound wisdom. While I
am willing to allow that declamation, or the powers of an effervescent
imagination, are no evidences of wisdom, the House must admit that the
mere dullness of a special pleader without his accuracy does not imply
any pretensions to knowledge. The truth is, that on this as on other
subjects, it has been my misfortune to come to the House too unprepared.
I knew nothing of the subject until it was brought under discussion. I
got up yesterday, as I have to-day, to say what first came into my head,
and in this way I hope I shall be permitted to go on.
I consider the whole of this business as one of the most unfortunate
kind that could have happened to the United States. If we had acquired
Louisiana by force of arms or conquest, we could scarcely have inspired
the people of that country with greater indignation than by these
events--in which it is yet to be seen whether these people are at all
concerned; or whether they are not standing like sheep, suffering the
wolves to pass without disturbance--events which must sow the seeds
of lasting misfortune, unless healed by a timely interposition of the
Government. And nothing can have a more fatal effect than any thing done
by this House, or the other part of the Government, to sanction the
conduct of the Commander-in-chief, taking it to be such as is ascribed
to him. As a member of this House I am free to give my opinion of
what would restore peace to that country--though out of doors I might
not do it. The first step ought to be the immediate recall of every
man directly or indirectly concerned in this business. You can hardly
suppose, sir, that I look forward to be made their Governor, or desire
on my recommendation to introduce a friend to that place. But I have no
hesitation in saying that unless some such step be taken, the attachment
of that country to the United States is lost for ever. I would take
such a step boldly--I would know nothing of their little disputes; I
would act with the authority of a venerable parent, who, on returning
home, found his children by the ears. I would correct them all, I would
discountenance at once all such intrigues--I would recall every man
who has directly or indirectly participated, or is suspected of having
participated in them--I would, in short, rub out and begin again. It is
an extremely unfortunate thing that the people of New Orleans, for the
most part speaking the French language, a great part of them attached
to the Crown of Spain--transferred to the United States by an honorable
purchase--told they were about to taste the sweets of a Government of
laws--told that arbitrary notions and _lettres de cachet_ were to be
proscribed--that the constitution was not to be departed from, but
that they were to enjoy all the blessings of citizens of the United
States--it is extremely unfortunate that New Orleans should be the first
place in which a lesson of military despotism should be taught. I deem
it extremely unfortunate--it cannot tend to attach those people to the
United States; it will, however, have another tendency--it will prevent
every man of character from emigrating to that country, and instead
of mixing the Americans with the French, the latter will be kept as a
distinct class. For will any man, having the least regard to his rights,
go to a place where he will be seized by a military commandant? Suppose,
Mr. Speaker, such a thing had taken place in your country or mine. The
military would not at this period be before the court--the spirit of
the country would have long since settled the question. I recollect in
1798 or 1799, when the officers of the army were following their legal
avocation of enlisting recruits, such was the spirit of detestation
in which a standing army was held in my district, that these men were
obliged to break up and move off. That spirit would scarcely endure the
legal act of a man acting under legal authority, and yet we have now an
apology for men acting in direct contravention of legal authority. Will
any man point out a good cause for this change?
The writ of habeas corpus is the only writ sanctioned by the
constitution. It is guarded from every approach except by the two Houses
of Congress; and yet this writ, thus acknowledged, thus specially
designated, this second Magna Charta, as it has been called, is to be put
on the footing of a common trespass. Really, when a man tells me that
if imprisoned I may get damages, it requires no ghost to come and tell
us that this may be done even without the writ of habeas corpus. But
will gentlemen point to any legislative sanction by which the execution
of this writ is guarded? Perhaps action on the case might be sustained
for disobeying it; but suppose a judge should deny it. Impeach him, say
gentlemen. But will gentlemen rely on that? That affords no certain
punishment, and an uncertain punishment is inadequate. We want a certain
and adequate remedy.
I stated that I would make a military officer, acting under his own
responsibility, acting as commander-in-chief, punishable with death for
such an infraction. Did I, in saying so, also say that I would punish an
inferior officer with death? Will any man deny that a military character
arraying himself against the constitution of his country is worthy of
death? I say he is a traitor. A commander-in-chief of an army, who, on
his own responsibility, puts the constitution and laws of his country at
defiance, is a traitor; and, supposing the case stated at New Orleans
to be correctly stated, the Commander-in-chief is as much a traitor
as any other man concerned in the conspiracy. Who are these traitors?
Burr & Co. What are they about to do? To put down the civil authority
by military force; and is there any substantial difference whether the
civil authority is trampled under foot by Burr and his banditti, or by
a commander-in-chief and his regular army? I will go farther. Suppose
these measures for putting down Burr shall eventually prove to have been
measures for putting up somebody else, in what will these men differ?
In nothing. If the commander of an army, to give himself a false eclat,
shall trample the constitution under foot, shall go a certain length with
conspirators, and finding his ground no longer tenable, shall determine
to make up in zeal what he wanted in fidelity, he is guilty of treachery
to the constitution and laws--he is guilty of more--he is guilty of
violating the principle respected by knaves--the principle of fidelity to
each other.
The gentleman from Massachusetts (Mr. QUINCY) has stated the difference
that exists between the right of the writ of habeas corpus and the
remedy. He has correctly stated that it is not intended as a remedy--not
to allow an action for false imprisonment--but to prevent false
imprisonment, and therefore that it ought to be guarded by sanctions.
But the gentleman has omitted to mention one circumstance, which is,
that in England the writ of habeas corpus is secured by the sanction of
death. And is our attachment to liberty less than that of England? I say
that a Chief Justice of England for refusing to issue a writ of habeas
corpus, may be impeached, taken to Tower Hill and decollated. If there
had existed the privilege of the writ of habeas corpus in England at the
time of the impeachment of Strafford, could there have been a charge more
strong than a settled design to do away that privilege? In England also
it is guarded by the power of attainder. Thank God! we have not that
feature in our constitution. But if the same spirit pervades that country
now which once did, nothing would sooner pass a bill of attainder,
through the two Houses of Parliament, than a known and wanton invasion of
this privilege. But fortunately our constitution has denied to us this
power; and it is because we cannot pass bills of attainder, and because
judgments on impeachments do not affect the life, that it behooves us to
guard this important principle with some more solemn sanctions than it
now possesses.
Mr. J. CLAY said, before the question was taken, he would mention one or
two points that went to show the necessity of a reference. He understood
that one of the persons arrested by General Wilkinson had been landed
on an island near Charleston, and, on the issuing a writ, the officer
had refused to obey it. He would ask whether this was not a violation
of the writ of habeas corpus that required a remedy by law? Mr. C. said
he always viewed it as a matter of regret, that questions of this kind
should be taken up on party ground. He considered such a suggestion, on
the present occasion, as a mere trap to get a few votes. They were told
of the dark times when alien and sedition laws were passed. If, however,
under the alien law, men might be deported, gentlemen should recollect
that it was according to law--that there was an express statute that
justified the measure. Mr. C. said he considered the kidnapping alluded
to by gentlemen as a gross violation of the habeas corpus, and would
be glad to know whether sending a man to Baltimore from Orleans, was
not as gross a violation of principle as sending him from this place
to Orleans? Mr. C. concluded by observing that he considered it a very
unfortunate thing for any gentleman of talents to be educated at the bar.
So many distinctions were there taken, that a man of his plain mind could
scarcely see any thing. He should, however, adhere to the constitution,
and would ask whether a military arrest was not a gross violation of it;
and whether there ought not to be some exemplary punishment to guard
against it?
Mr. ELMER said he should vote for the postponement of the resolution. It
had been under discussion for three days, and he did not perceive they
were nearer a result than on the first day. Was it discreet to refer this
resolution to a select committee, when it was manifest they could not go
through the business without neglecting important business already before
them? He should also vote for the postponement, as, although three days
had been taken up in the discussion, he had not heard any one gentleman
urge a single reason to show the necessity of any additional provisions.
This very transaction, he believed, would ultimately turn out beneficial
to the United States, notwithstanding the arts of ambitious men. It would
display such a striking regard of the people to the government of their
choice, as to prevent any like attempts in future. Mr. E. said he did
not know whether General Wilkinson was a conspirator, but in this case
he did not see that the constitution had been so flagrantly violated.
Take the case of a conspiracy against the constitution, to level and
destroy the constitution altogether, and directed towards the garrison
which General Wilkinson commanded, in a remote part of the United
States, and distant from any strength to support him. If we consider
the question in this view, that the lives and property of the citizens
were at stake, and even the judges engaged with the conspirators, was it
improper to take up these men and send them to a place where they could
be impartially tried? Let gentlemen, said Mr. E., pass as sanguinary
laws as they please, if I considered the judges concerned, and were
satisfied there were conspirators within, I would arrest them, though
death were the consequence, and I am persuaded every officer faithful to
his trust, would do the same thing. I admit that in all cases, except
of the greatest emergency, the military ought to give way to the civil
power. With regard, however, to what gentlemen call the audacity of
sending these people here, in the face of the legislative body, I confess
I entertain a different opinion. In cases of military arrest, I am most
afraid of secrecy. Does not publicity, as far as it goes, show a good
conscience? Does it not show the wish of the Commander-in-chief that his
conduct should be examined in the face of the nation, conscious that, on
a full examination, he will appear to have acted as a good officer and
an honest man? As I have said before, I do not know that he is honest.
I know that he has been charged with being a conspirator, but on this
point we have no proof before us.
Mr. KELLY said, in order to obtain a right understanding of the subject,
it is necessary to inquire how this inestimable privilege was secured to
the subjects of Great Britain by Magna Charta, the great charter of their
privileges, which was extorted sword in hand by the Lords and Barons,
from King John at Runnymede, and how far the privilege thus secured, was
made more effectual by the statute of Charles II., which was called the
second great charter of their liberties. This writ of _habeas corpus ad
subjiciendum_, which was secured by this charter, became a writ of right,
not less secured to the subjects of that kingdom than the same is secured
to our citizens by our constitution.
We are informed by Sir William Blackstone, in his famous commentaries on
the English law, that the inestimable privilege of the writ of habeas
corpus was of early date in Great Britain, almost coëval with the first
rudiments of their constitution. The liberty of the subject could not
be abridged in any case without special permission of law, although
sometimes impaired by the usurpation of princes and the ferocity of
particular times. It was, however, established on the firmest basis by
the provisions of Magna Charta, and a long succession of statutes under
Edward III., and was recognized by the Crown in several after reigns.
And it will hardly be contended that this privilege is better secured
to the citizens of the United States by our constitution, than the same
was secured to the subjects of the British Crown by the provisions of
Magna Charta. Yet abuses had crept into daily practice in England, which
had in a great measure defeated this great constitutional remedy. The
flagrant abuse of power by the Crown, generally, produced a struggle
which discovered the exercise of that power to be contrary to law,
or restrained it for the future. An obscure individual gave birth to
the famous habeas corpus act in the reign of Charles II., which was
justly called another Magna Charta of the kingdom. Francis Jenkes was
committed by the Council Board for a turbulent speech made at a common
hall assembled at Guildhall, for the purpose of choosing officers. He
applied to the then Lord Chief Justice Kaimsford for a habeas corpus,
who alleged that he could not grant the writ in vacation. The friends
of the prisoner afterwards applied to the Lord Chancellor, who said the
king would not grant it without a petition; application was afterwards
made to the court of quarter sessions to have him bailed; the court said,
there was no such name in the calendar; upon application to the jailer,
he said he never returned any man committed by the Council Board. When a
copy of the commitment was obtained, the jailer evaded making proof of it
by going away, as was believed with the privity of the court; at length,
the commitment being established, the court doubted their power to act,
when the Lord Chief Justice and Lord Chancellor had refused, the court
took time to consider of the application until next term. A petition was
afterwards presented to the Lord Chancellor, who also took further time
to consider; at length the Lord Chief Justice, upon the matter being
suggested to the King, issued a habeas corpus, and the prisoner was
discharged. To prevent similar abuses in future was the famous habeas
corpus act passed, which regulated the mode of proceeding upon writs
of habeas corpus, and fully ensured its benefits and provisions to the
subject.
The question on indefinite postponement was then taken by yeas and nays,
and carried--yeas 60, nays 58.
FRIDAY, February 20.
_Lewis and Clarke._
The House resumed the consideration of the unfinished business of Monday
last, on the bill making compensation to Messrs. Lewis, Clarke, and their
companions.
The bill grants land warrants, which may be either located or received
at the land offices in payment of debts due there, at the rate of two
dollars per acre. The bill grants these persons 24,960 acres.
A motion was made by Mr. LYON to strike out so much as permits the
receipt of these warrants at the land offices in payment of debts. This
was opposed by Mr. ALSTON and supported by Messrs. TALLMADGE, J. CLAY,
QUINCY, COOK, LYON, ELY, and D. R. WILLIAMS. It was contended that double
pay was a liberal compensation, and that this grant was extravagant
and beyond all former precedent. It was equivalent to taking more than
$60,000 out of the Treasury, and might be perhaps three or four times
that sum, as the grantees might go over all the Western country and
locate their warrants on the best land, in 160 acre lots.
A motion to recommit the bill was made, and after considerable debate,
was carried--ayes 66.
WEDNESDAY, February 25.
_Post Roads._
On motion of Mr. THOMAS, the House proceeded to consider the Post Office
bill.
Mr. J. RANDOLPH observed that this was an extraordinary bill, and was
passing in an extraordinary manner. It gave New Hampshire, Massachusetts,
New York, and some other Northern States, a large number of post roads,
and not one to Virginia. It was not wonderful that this subject was
pressed on by certain gentlemen. If it would not be considered as too
alarming a proof of Virginia influence on this floor, he would propose a
new road from Prince Edward County, in the district which he represented,
to Petersburg. Mr. R. spoke at considerable length.
Mr. BLOUNT observed that many large counties in the Southern States had
no post roads, while scarcely a town in the Northern States was without
one.
Mr. QUINCY repelled the suggestion of partiality by recurring to
former laws and showing that the Southern States had been previously
accommodated better than the Northern States.
Mr. J. RANDOLPH said this was a new sort of political arithmetic.
The gentleman from Vermont (Mr. FISK) had said that three roads were
discontinued in that State, and four only established, so that the gain
was only one. In Virginia you discontinue four established roads, and
give us no new one, though we have claimed several. We must work negative
quantities; we are _minus_ four. He wished to know how the equation was
to be adjusted and managed. Mr. R. concluded a long speech by proposing
a new section which went to forbid the carriers of the mail deviating
from the old established routes, under penalty of twenty dollars for each
offence.
This motion was intended to coerce the mail carriers to go through
Colchester, and not through Occoquan, Virginia.
THURSDAY, February 26.
_Claim of M. Beaumarchais._
Mr. HOLMES, from the Committee of Claims, to whom was referred the
Message of the President of the United States, transmitting a memorial
of the French Minister, on the subject of the claim of Amelie Eugenie de
Beaumarchais, heir and representative of the late Caron de Beaumarchais,
made the following report:
This claim was presented to Congress at their last session
by the agent of the representative of the late Caron de
Beaumarchais, and a report was made thereon by the Committee
of Claims, which was not finally acted upon by the House.
The documents presented with that report, and the memorial
of the French Minister, transmitted with the President’s
Message, contain a full statement of all the material facts and
principles involved in the consideration of the case. As the
papers accompany the present report, your committee do not deem
it necessary to detail particularly the circumstances attending
the charge of one million of livres, made of the United States,
in their account with Caron de Beaumarchais, (which is the
foundation of the present application.) The claimants have
uniformly contested the correctness of this charge, declaring
that Mr. Beaumarchais has settled with the French Government
for the same, conformably to the tenor of his receipt. The
substance of this declaration is now confirmed by the French
Government, through their Minister, in the following words:
“That the million given on the 10th of June, 1776, to M. de
Beaumarchais, was employed in a secret service; that an account
of it has been rendered to the King, and approved by him; and
that it was not given on account of supplies furnished by the
said Beaumarchais to the United States.”
The source whence this declaration proceeds renders it
unnecessary to allude to any corroborative circumstances
in support of the fact; but, as questions of law may arise
in investigating the case, your committee think the course
most consistent with the principles of justice, to which
the United States have always adhered, would be to submit
the claim generally to the consideration of the Secretary of
State, with instructions to report to Congress at their next
session; that he might consult the Attorney-General upon any
questions of law arising in the course of the investigation,
and furnish Congress with any other information that would tend
to elucidate the subject. They therefore submit the following
resolution:
_Resolved_, That the Message of the President of the United
States, transmitting a memorial of the French Minister on the
subject of the claim of Amelie Eugenie de Beaumarchais, legal
representative of the late Caron de Beaumarchais, be referred
to the Secretary of State, and that he be directed to report
thereon to Congress at their next session.
The report was agreed to.
FRIDAY, February 27.
_Lewis and Clarke._
An engrossed bill making compensation to Messrs. LEWIS and CLARKE and
their companions, was read the third time, and on the question that the
said bill do pass, it was resolved in the affirmative--yeas 62, nays 23.
MONDAY, March 2.
_Public Lands._
The House proceeded to consider the bill sent from the Senate, entitled
“An act to prevent settlement being made on lands ceded to the United
States, until authorized by law,” together with a report of the Committee
on the Public Lands thereon.
Mr. QUINCY moved its indefinite postponement. He observed that the
provisions of the bill were highly important, and affected great
constitutional questions, which it was not possible for the House to do
justice to at so late a period of the session. The principle contained in
the first section was, that the rights of all persons shall be forfeited,
who shall undertake to settle on the public lands. This provision was
not against trespassers, but was obviously intended to destroy the
constitutional rights of those who had existing rights. The object of
the bill was to defeat these constitutional rights. He had another
objection to the bill. It went to forfeit the whole right to the land,
in violation of the constitution, which expressly declares that “no
attainder of treason shall work corruption of blood or forfeiture, except
during the life of the person attainted,”--and yet, under this law, it is
undertaken, without any crime, to forfeit the rights of the individual,
not only during his life, but likewise during that of his heirs. He had
another constitutional objection. The constitution says, “nothing in
this constitution shall be so construed as to prejudice the claims of
the United States, or of any particular State.” Among the rights derived
from the States, if the property has passed, is the right of possession.
This bill is therefore an invasion of the rights of the States. There is
another constitutional objection. The ninth article of the amendment to
the constitution provides that “in suits at common law, when the value
in controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved.” Here the right is taken away in a question of the
highest magnitude to the individual. The object of this law is nothing
more or less than to build up the legislative power on the destruction
of that of the Judiciary. There was another objection. The constitution
says, “excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” Here is an extensive fine
imposed. Mr. Q. said it was impossible, in the time that remained, to
do justice to this subject--he therefore hoped it would be indefinitely
postponed.
Mr. GREGG said he had no intention, on a proposition to postpone, to go
into a discussion of the merits of the bill; but he believed an attention
to its provisions would obviate many of the objections raised against it.
He would not attempt to justify the bill in all its minutiæ. He hoped,
however, the gentleman would withdraw his motion; he would then have an
opportunity, when the bill was taken up, to offer such amendments as
might remove his objections. Mr. G. said he thought the propriety of such
a bill was justified by the necessity of the case. The simple question
was, whether the United States should derive any benefit from the public
lands, or whether they should be given up to intruders. It must be known
to every one that almost innumerable persons had settled down on the
public lands without meaning to pay for them. Their object was to settle
down on them for a while, to sell their improvements, and then make other
settlements. Hence the absolute necessity of making some provision on the
subject. Mr. G. said he had no particular part of the lands of the United
States in view--he took the subject upon general grounds. He believed the
intrusions were most numerous in the Indiana Territory; but there was no
district in which they had not been made to a considerable extent. He did
not pretend to say that this law was the best that could be passed on
the subject--they might not however be able to get one much better. When
taken up it would be in the power of gentlemen to offer such amendments
as they pleased.
Mr. OLIN said he hoped the gentleman from Massachusetts would not
withdraw his motion. He believed no man would charge him with a design to
cover certain fraudulent claims; but he trusted the principle contained
in this bill would not be sanctioned. They were not a judicial body; and
had not a right to take the ground assumed in the bill. They had formerly
had an attempt made upon them to sanction claims founded in fraud, and
he had voted against it. He should also vote against this bill; he would
never agree that men should be dispossessed of their property in such a
way.
Mr. HASTINGS spoke against the bill, and in favor of the indefinite
postponement.
Mr. N. WILLIAMS considered the bill so objectionable that he could not
vote for it; and as, from the short period of the session that remained,
it was impossible to give it a proper attention, he would vote for
the postponement. The first objection he should make to the bill was
this--that it destroyed that right hitherto considered sacred, the right
of asserting a claim to property--a right that was established and coëval
with the laws of the country. Nothing was better settled than that an
individual who claimed a right to a piece of property had a right to take
possession of it, and hold it till deprived by process of law. Here that
right is denied, and in the most exceptionable manner, by giving the
President the power of judging when the rights of the United States are
violated, and the power to dispossess by military force, before trial of
the case. Mr. W. said this appeared to him a principle too tyrannical for
them to adopt at the present day--to authorize the President to send a
military force to deprive a man of his property, without leaving him any
mode of trying his right. This was the very last act, which ought in no
case to be resorted to, till the civil laws had been found insufficient.
Mr. W. said he did not know that any such power had been ever exercised
in Great Britain, or in any other country where less freedom was enjoyed.
The military force ought only to be called out when the civil force was
insufficient. This was not the only objection he had to the bill. The
citizens were rendered liable by it to imprisonment and punishment,
without due course of law, notwithstanding all they had lately heard of
trial by jury, and the zeal manifested for it. More might be said, but
as the time of the House was precious, he would forbear adding any thing
further.
Mr. D. R. WILLIAMS hoped the motion would not prevail; and for the very
reasons urged by gentlemen. If the details are defective, let us get at
the bill--if the principle is defective, that indeed may be a reason for
postponement; but any defect in the detail may be corrected. Mr. W. said
he could not but congratulate gentlemen on their returning sensibility
for the constitution. When their feelings had been harrowed up on a
recent occasion, gentlemen had felt no sensibility for the constitution;
but when they come to the adoption of a bill, which went to affect
Yazooism, all their sensibility was roused. Against this different course
he protested. The gentleman from Massachusetts had observed there were
not many intruders on the public lands, but surely he could not have read
the papers even of his capital, or he must have recollected a proposition
made in them to raise and march ten thousand men to take possession of
the public lands. Would he in the face of such a fact say there was no
danger? But, say gentlemen, will you deprive individuals of their rights?
And what are they aiming at? Are they not endeavoring to deprive you of
your rights? The fact, however, is, if these people do not trespass on
the public lands they will not be affected by this law; and if they do,
they ought to be affected by it. As to the application of military force,
that is not a new principle; as, under the Administration of General
Washington, it was found necessary to vest the power.
Mr. QUINCY.--I did not mean to argue the details of the bill on this
question--I merely stated certain considerations to show that it was not
proper at this time to discuss the principles contained in the bill. And
I ask gentlemen, whether, from the temper which has been manifested,
and the importance of the subject, it is possible to get through the
bill during the present session? If gentlemen will sit still, and be
as callous as they were lately, it may perhaps be carried through this
session; but if it be properly discussed, it cannot. Gentlemen say we
have no sensibility to constitutional questions, except on this occasion.
On the subject, however, of Yazooism, I have not said a word. My remarks
were general. I placed that and all other claims on the footing of the
law. This bill applies to the whole of them.
The question was then taken by yeas and nays on the indefinite
postponement of the bill--yeas 43, nays 68.
Mr. QUINCY moved to strike out the following part of the first section of
the bill:
“Such offender or offenders shall forfeit all of his or their
right, title, and claim, if any he hath, or they have, of
whatsoever nature or kind the same shall or may be, to the
lands aforesaid, which he or they shall have taken possession
of, or settled, or caused to be occupied, taken possession
of, or settled, or which he or they shall have surveyed,
or attempted to survey, or caused to be surveyed, or the
boundaries thereof, he or they shall have designated, by
marking trees or otherwise.”
He said so far as this section went to provide against trespasses, it
was unnecessary; and so far as it went to operate against persons having
rights to land, it was unconstitutional. So far as respected the former,
the arm of the law was sufficiently strong, and they might be removed by
its ordinary process. It was not contended that this law was meant to
apply against them--it would be absurd to say so, when they alleged no
rights. The truth was, this was a general law, made to suit a particular
case. This had been acknowledged by the gentleman from Virginia. Mr. Q.
said he believed no man would contend, that were it not for that case,
such a law would pass. He believed making a general law for particular
cases, unusual and unconstitutional.
Mr. Q. here recapitulated the constitutional objections which he before
urged.
He observed that the gentleman from South Carolina had referred to a law
passed in the year 1799, which prevented any settlement within the Indian
boundaries. Could any gentleman compare the case with this? In that case
a treaty had been made between the United States and the Indians, one
of the provisions of which prevented any citizen from going within the
Indian boundary. Mr. Q. said he would use but one other argument, which
was, that this law would be a mere nullity. If individuals wished to try
their title, as soon as the military attempted to remove them, the courts
of justice would interfere; and this would decide the question of title
which gentlemen seem afraid to meet.
Mr. LYON supported the motion to strike out.
On which the question was taken by yeas and nays--yeas 35, nays 54.
Mr. QUINCY offered the following proviso to the first section:
“_Provided, also_, That nothing in this act shall prevent any
person claiming title to any such lands, under or by virtue of
an act or grant of any State, from peaceably entering thereon,
for the purpose of being enabled thereby to bring to a judicial
decision at law or in equity the validity of the title so
claimed.”
Mr. QUINCY said he made this motion, because he considered this section
no more nor less than levelled at the Judiciary of the United States; and
that his vote might be recorded, he would ask for the yeas and nays.
The question was then taken by yeas and nays on the proviso, and decided
in the negative--yeas 30, nays 64.
Mr. FISK said, that rather than have such a principle introduced into the
laws of the United States, as was contained in this bill, he would prefer
seeing all the Yazoo land sunk in the sea. He had no idea of seeing the
rights to property tried at the point of the bayonet. He had often heard
the Yazoo represented as a wicked business. He believed it was such; but
he had ever hoped that the Judiciary would not be affected by it. This
was nothing more nor less than providing by an armed force to turn men
off from the land they occupy, and to deprive them of their rights, if
they had any. If they had no rights, it was unnecessary to introduce such
a principle into the bill; and if they had, they were to be divested of
them by an armed force, without a trial by jury. He would ask if this
were constitutional? He would ask gentlemen where were the feelings which
they had recently displayed for the rights of the people who had sent
them here? He wished gentlemen to recollect the maxim they laid down,
that it was immaterial who were the persons affected, the rights were the
same, and their invasion as dangerous in the person of the lowest wretch
as in that of the most exalted character. Mr. F. said he was decidedly
against the bill, and should vote for its rejection.
The bill was immediately read the third time.
Mr. LYON spoke against its passage.
When the question was taken on its passage by yeas and nays, and decided
in the affirmative--yeas 57, nays 44.
TUESDAY, March 3.
The bill sent from the Senate, entitled “An act confirming claims to land
in the district of Vincennes,” together with the amendments agreed to
yesterday, were read the third time, and passed.
Mr. SAMUEL SMITH presented to the House a petition of sundry inhabitants
of the State of Pennsylvania, praying an amendment to the second section
of the third article of the Constitution of the United States, which
extends the judicial power of the United States “to controversies between
citizens of different States, between citizens of the same State claiming
lands under grants of different States, and between a State or the
citizens thereof and foreign States, citizens, or subjects.”--Laid on the
table.
The further consideration of the bill sent from the Senate, entitled
“An act to explain the act, entitled ‘An act supplementary to an act,
entitled “An act to divide the territory of the United States north-west
of the river Ohio into two separate Governments,”’” was postponed
indefinitely.
The House resolved itself into a Committee of the Whole on the bill in
addition to an act, entitled “An act in addition to an act, entitled ‘An
act supplementary to the act providing for a Naval Peace Establishment,
and for other purposes.’” The bill was reported with an amendment
thereto; which was read, and agreed to by the House.
_Eodem Die, half past 6 o’clock._
A message from the Senate informed the House that the Senate have passed
a bill, entitled “An act repealing the acts laying duties on salt, and
continuing in force, for a further time, the first section of the act,
entitled ‘An act further to protect the commerce and seamen of the United
States against the Barbary Powers,’” with an amendment; to which they
desire the concurrence of this House.
_Ordered_, That the farther consideration of the bill for the relief of
Edward Weld and Samuel Bebee be postponed indefinitely.
The House proceeded to consider the amendment proposed by the Senate to
the bill, entitled “An act repealing the acts laying duties on salt, and
continuing in force, for a further time, the first section of the act,
entitled ‘An act further to protect the commerce and seamen of the United
States against the Barbary Powers;’” and the same being again twice read,
was, on the question put thereupon, agreed to by the House.
An engrossed bill making compensation for extra services to the Governor,
Judges, and Secretary of the Indiana Territory, was read the third time,
and passed.
_Resolved_, That the Clerk of the House of Representatives be directed,
within one month after the close of the present session of Congress, to
advertise three weeks successively, in two newspapers, printed in the
District of Columbia, that he is ready to receive separate proposals for
supplying the House of Representatives, for the next Congress, with the
necessary stationery, printing, and wood for fuel, in manner prescribed
by two resolutions, passed by the House of Representatives, the first on
the twenty-eighth of February, one thousand eight hundred and five, and
the other on the twenty-first of April, one thousand eight hundred and
six.
_Thanks to the Speaker, and Adjournment._
On motion of Mr. GREGG, it was resolved unanimously, that the thanks
of this House be presented to NATHANIEL MACON, in testimony of their
approbation of his conduct in the discharge of the arduous and important
duties assigned to him whilst in the Chair: Whereupon,
Mr. SPEAKER made his acknowledgments to the House, in manner following:
“_Gentlemen_: It has been my constant endeavor to perform
faithfully the promise made to you two years ago, to discharge
the trust reposed in me with industry and fidelity. For the
resolution which you have this minute passed, I earnestly beg
of you to accept my sincere thanks; permit me also to assure
you, that it will be always remembered with gratitude. I wish
you safe home, and a happy meeting with your friends.”
Mr. VARNUM, from the committee appointed on the part of this House,
jointly with the committee appointed on the part of the Senate, to wait
on the President of the United States, and notify him of the proposed
recess of Congress, reported that the committee had performed that
service, and that the President signified to them he had no farther
communication to make during the present session.
_Ordered_, That a message he sent to the Senate to inform them that
this House, having completed the business before them, are now about to
adjourn without day; and that the Clerk of this House do go with the said
message. The Clerk accordingly went with the said message; and, being
returned, Mr. SPEAKER adjourned the House _sine die_.
TENTH CONGRESS.--FIRST SESSION.
BEGUN AT THE CITY OF WASHINGTON, OCTOBER 26, 1807
PROCEEDINGS IN THE SENATE.
LIST OF MEMBERS OF THE SENATE.
_New Hampshire._--Nicholas Gilman, Nahum Parker.
_Massachusetts._--John Quincy Adams, Timothy Pickering.
_Vermont._--Stephen R. Bradley, Jonathan Robinson.
_Rhode Island._--Benjamin Howland, Elisha Mathewson
_Connecticut._--James Hillhouse, Chauncey Goodrich.
_New York._--Samuel L. Mitchill.
_New Jersey._--John Condit, Aaron Kitchel.
_Pennsylvania._--Samuel Maclay, Andrew Gregg.
_Maryland_.--Samuel Smith, Philip Reed.
_Delaware._--Samuel White, James A. Bayard.
_Virginia_.--Andrew Moore, William B. Giles.
_North Carolina_.--James Turner, Jesse Franklin.
_South Carolina_.--Thomas Sumter, John Gaillard.
_Georgia_.--John Milledge, (Geo. Jones,) Wm. H. Crawford.
_Ohio_.--Edward Tiffin, John Smith.
_Kentucky_.--Buckner Thruston, John Pope.
_Tennessee_.--Joseph Anderson, Daniel Smith.
A PROCLAMATION
_By the President of the United States of America._
Whereas great and weighty matters claiming the consideration
of the Congress of the United States form an extraordinary
occasion for convening them, I do by these presents appoint
Monday the twenty-sixth day of October next for their meeting
at the City of Washington; hereby requiring the respective
Senators and Representatives then and there to assemble in
Congress, in order to receive such communications as may then
be made to them, and to consult and determine on such measures
as in their wisdom may be deemed meet for the welfare of the
United States.
In testimony whereof, I have caused the seal of the United
States to be hereunto affixed, and signed the same with my hand.
Done at the city of Washington, the thirtieth day of July, in
the year of our Lord one thousand eight hundred and seven, and
in the thirty-second year of the Independence of the United
States.
[L.S.]
TH. JEFFERSON.
By the President:
JAMES MADISON, _Secretary of State_.
MONDAY, October 26, 1807.
Conformably to the above Proclamation of the President of the United
States, of the 30th July last, the First Session of the Tenth Congress
commenced this day, at the city of Washington, and the Senate assembled,
in their Chamber, in the Capitol.
PRESENT:
GEORGE CLINTON, Vice President of the United States, and President of the
Senate.
NICHOLAS GILMAN, from New Hampshire.
JOHN QUINCY ADAMS and TIMOTHY PICKERING, from Massachusetts.
BENJAMIN HOWLAND, from Rhode Island.
STEPHEN R. BRADLEY, from Vermont.
SAMUEL L. MITCHILL, from New York.
JOHN CONDIT and AARON KITCHEL, from New Jersey.
SAMUEL MACLAY and ANDREW GREGG, from Pennsylvania.
SAMUEL WHITE, from Delaware.
SAMUEL SMITH and PHILIP REED, from Maryland.
JAMES TURNER, from North Carolina.
THOMAS SUMTER, from South Carolina.
JOHN MILLEDGE, from Georgia.
BUCKNER THRUSTON, from Kentucky.
JOSEPH ANDERSON and DANIEL SMITH, from Tennessee.
JESSE FRANKLIN, appointed a Senator by the Legislature of the State of
North Carolina, for the term of six years, commencing on the fourth day
of March last; GEORGE JONES, appointed a Senator by the Executive of the
State of Georgia, to fill the vacancy occasioned by the death of Abraham
Baldwin; NAHUM PARKER, appointed a Senator by the Legislature of the
State of New Hampshire, for the term of six years, commencing on the
fourth day of March last; JONATHAN ROBINSON, appointed a Senator by the
Legislature of the State of Vermont, to supply the place of Israel Smith,
whose seat has become vacant; and EDWARD TIFFIN, appointed a Senator
by the Legislature of the State of Ohio, for the term of six years,
commencing on the fourth day of March last, respectively took their
seats, and produced their credentials, which were read; and the oath
prescribed by law was administered to them.
JOHN POPE, appointed a Senator by the State of Kentucky, for the term
of six years, commencing on the fourth of March last, stated that the
Governor and Secretary being absent when he left home, he came to the
seat of Government without his credentials; but that he expected they
would be speedily forwarded to him: whereupon, he took his seat in the
Senate, and the oath was administered to him as the law prescribes. The
oath was also administered to Messrs. BRADLEY, GREGG, MILLEDGE, and REED,
their credentials having been read and filed during the last session.
_Ordered_, That the Secretary acquaint the House of Representatives that
a quorum of the Senate is assembled, and ready to proceed to business.
_Ordered_, That Messrs. ANDERSON and BRADLEY be a committee on the
part of the Senate, together with such committee as the House of
Representatives may appoint on their part, to wait on the President of
the United States, and notify him that a quorum of the two Houses is
assembled, and ready to receive any communications that he may be pleased
to make to them.
On motion, it was
_Resolved_, That each Senator be supplied, during the present session,
with three such newspapers, printed in any of the States, as he may
choose; provided that the same be furnished at the usual rate for the
annual charge of such papers; and provided, also, that if any Senator
shall choose to take any newspapers, other than daily papers, he shall be
supplied with as many such papers as shall not exceed the price of three
daily papers.
On motion, it was
_Resolved_, That JAMES MATHERS, Sergeant-at-Arms and Doorkeeper to
the Senate, be, and he is hereby, authorized to employ one Assistant
and two horses, for the purpose of performing such services as are
usually required by the Doorkeeper to the Senate; and that the sum
of twenty-eight dollars be allowed him, weekly, for that purpose, to
commence with and remain during the session, and for twenty days after.
On motion, it was
_Resolved_, That two Chaplains, of different denominations, be appointed
to Congress during the present session, one by each house, who shall
interchange weekly.
_Ordered_, That the Secretary desire the concurrence of the House of
Representatives in this resolution.
A message from the House of Representatives informed the Senate that a
quorum of the House of Representatives is assembled, and have elected
JOSEPH B. VARNUM, one of the Representatives for Massachusetts, their
Speaker, and are ready to proceed to business. They have appointed a
committee on their part, jointly with the committee appointed on the part
of the Senate, to wait on the President of the United States, and notify
him that a quorum of the two Houses is assembled, and ready to receive
any communications that he may be pleased to make to them.
The Senate adjourned to 11 o’clock to-morrow morning.
TUESDAY, October 27.
Mr. ANDERSON reported, from the joint committee, that they had waited
on the President of the United States, agreeably to the resolution of
yesterday, and that the President informed the committee that he would
make a communication to the two Houses this day, at 12 o’clock.
_President’s Annual Message._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
Circumstances, fellow-citizens, which seriously threatened the
peace of our country, have made it a duty to convene you at an
earlier period than usual. The love of peace, so much cherished
in the bosoms of our citizens, which has so long guided the
proceedings of their public councils, and induced forbearance
under so many wrongs, may not ensure our continuance in the
quiet pursuits of industry. The many injuries and depredations
committed on our commerce and navigation upon the high seas for
years past, the successive innovations on those principles of
public law which have been established by the reason and usage
of nations as the rule of their intercourse, and the umpire and
security of their rights and peace, and all the circumstances
which induced the extraordinary mission to London, are already
known to you. The instructions given to our Ministers were
framed in the sincerest spirit of amity and moderation. They
accordingly proceeded, in conformity therewith, to propose
arrangements which might embrace and settle all the points
in difference between us, which might bring us to a mutual
understanding on our neutral and national rights, and provide
for a commercial intercourse on conditions of some equality.
After long and fruitless endeavors to effect the purposes of
their mission, and to obtain arrangements within the limits
of their instructions, they concluded to sign such as could
be obtained, and to send them for consideration, candidly
declaring to their other negotiators at the same time that
they were acting against their instructions, and that their
Government therefore could not be pledged for ratification.
Some of the articles proposed might have been admitted
on a principle of compromise, but others were too highly
disadvantageous; and no sufficient provision was made against
the principal source of the irritations and collisions which
were constantly endangering the peace of the two nations. The
question, therefore, whether a treaty should be accepted in
that form, could have admitted but of one decision, even had
no declarations of the other party impaired our confidence
in it. Still anxious not to close the door against friendly
adjustment, new modifications were framed, and further
concessions authorized than could before have been supposed
necessary; and our Ministers were instructed to resume their
negotiations on these grounds. On this new reference to
amicable discussion we were reposing in confidence, when, on
the 22d day of June last, by a formal order from a British
Admiral, the frigate Chesapeake, leaving her port for a distant
service, was attacked by one of those vessels which had been
lying in our harbors under the indulgences of hospitality,
was disabled from proceeding, had several of her crew killed,
and four taken away. On this outrage no commentaries are
necessary. Its character has been pronounced by the indignant
voice of our citizens with an emphasis and unanimity never
exceeded. I immediately, by proclamation, interdicted our
harbors and waters to all British armed vessels, forbade
intercourse with them; and, uncertain how far hostilities were
intended, and the town of Norfolk, indeed, being threatened
with immediate attack, a sufficient force was ordered for
the protection of that place, and such other preparations
commenced and pursued as the prospect rendered proper. An armed
vessel of the United States was despatched with instructions
to our Ministers at London to call on that Government for the
satisfaction and security required by the outrage. A very
short interval ought now to bring the answer, which shall be
communicated to you as soon as received; then, also, or as soon
after as the public interests shall be found to admit, the
unratified treaty and proceedings relative to it, shall be made
known to you.
The aggression thus begun has been continued on the part of the
British commanders, by remaining within our waters in defiance
of the authority of the country, by habitual violations of
its jurisdiction, and, at length, by putting to death one of
the persons whom they had forcibly taken from on board the
Chesapeake. These aggravations necessarily lead to the policy
either of never admitting an armed vessel into our harbors,
or of maintaining in every harbor such an armed force as may
constrain obedience to the laws, and protect the lives and
property of our citizens against their armed guests. But the
expense of such a standing force, and its inconsistence with
our principles, dispense with those courtesies which would
necessarily call for it, and leave us equally free to exclude
the navy as we are the army of a foreign power from entering
our limits.
To former violations of maritime rights another is now added
of very extensive effect. The Government of that nation has
issued an order interdicting all trade by neutrals between
ports not in amity with them. And being now at war with nearly
every nation on the Atlantic and Mediterranean seas, our
vessels are required to sacrifice their cargoes at the first
port they touch, or to return home without the benefit of going
to any other market. Under this new law of the ocean, our
trade on the Mediterranean has been swept away by seizures and
condemnations, and that in other seas is threatened with the
same fate.
Among our Indian neighbors in the North-western quarter, some
fermentation was observed soon after the late occurrences,
threatening the continuance of our peace. Messages were said
to be interchanged, and tokens to be passing, which usually
denote a state of restlessness among them, and the character
of the agitators pointed to the sources of excitement.
Measures were immediately taken for providing against that
danger; instructions were given to require explanations, and,
with assurances of our continued friendship, to admonish the
tribes to remain quiet at home, taking no part in quarrels not
belonging to them. As far as we are yet informed, the tribes
in our vicinity, who are most advanced in the pursuits of
industry, are sincerely disposed to adhere to their friendship
with us, and to their peace with all others. While those more
remote do not present appearances sufficiently quiet to justify
the intermission of military precaution on our part.
The great tribes on our South-western quarter, much advanced
beyond the others in agriculture and household arts, appear
tranquil, and identifying their views with ours, in proportion
to their advancement. With the whole of these people, in every
quarter, I shall continue to inculcate peace and friendship
with all their neighbors, and perseverance in those occupations
and pursuits which will best promote their own well-being.
The appropriations of the last session for the defence of our
seaport towns and harbors, were made under expectation that a
continuance of our peace would permit us to proceed in that
work according to our convenience. It has been thought better
to apply the sums then given toward the defence of New York,
Charleston, and New Orleans, chiefly, as most open and most
likely first to need protection, and to leave places less
immediately in danger to the provisions of the present session.
The gunboats, too, already provided, have, on a like principle,
been chiefly assigned to New York, New Orleans, and the
Chesapeake. Whether our movable force on the water, so
material in aid of the defensive works on the land, should be
augmented in this or any other form, is left to the wisdom of
the Legislature. For the purpose of manning these vessels, in
sudden attacks on our harbors, it is a matter of consideration
whether the seamen of the United States may not justly be
formed into a special militia, to be called on for tours of
duty in defence of the harbors where they shall happen to be;
the ordinary militia of the place furnishing that portion which
may consist of landsmen.
I informed Congress at their last session of the enterprises
against the public peace, which were believed to be in
preparation by Aaron Burr and his associates, of the measures
taken to defeat them, and to bring the offenders to justice.
Their enterprises were happily defeated by the patriotic
exertions of the militia whenever called into action, by the
fidelity of the Army and energy of the Commander-in-chief,
in promptly arranging the difficulties presenting themselves
on the Sabine, repairing to meet those arising on the
Mississippi, and dissipating, before their explosion, plots
engendering there. I shall think it my duty to lay before you
the proceedings, and the evidence publicly exhibited on the
arraignment of the principal offenders before the circuit court
of Virginia. You will be enabled to judge whether the defect
was in the testimony, in the law, or in the administration of
the law, and wherever it shall be found, the Legislature alone
can apply or originate the remedy.[50] The framers of our
constitution certainly supposed they had guarded, as well their
Government against destruction by treason, as their citizens
against oppression, under pretence of it; and if these ends are
not attained, it is of importance to inquire by what means more
effectual they may be secured.
The accounts of the receipts of revenue during the year ending
on the thirtieth day of September last, being not yet made up,
a correct statement will be hereafter transmitted from the
Treasury. In the mean time, it is ascertained that the receipts
have amounted to near sixteen millions of dollars, which, with
the five millions and a half in the Treasury at the beginning
of the year, have enabled us, after meeting the current demands
and interest incurred, to pay more than four millions of the
principal of our funded debt. These payments, with those of
the preceding five and a half years, have extinguished of the
funded debt twenty-five millions and a half of dollars, being
the whole which could be paid or purchased within the limits of
the law and of our contracts, and have left us in the Treasury
eight millions and a half of dollars.
Matters of minor importance will be the subjects of future
communications, and nothing shall be wanting on my part which
may give information or despatch to the proceedings of the
Legislature in the exercise of their high duties, and at a
moment so interesting to the public welfare.
TH. JEFFERSON.
OCTOBER 27, 1807.
The Message was read, and three hundred copies thereof, together with the
documents therein referred to, ordered to be printed for the use of the
Senate.
THURSDAY, October 29.
JAMES HILLHOUSE, from the State of Connecticut, attended.
MONDAY, November 2.
JOHN GAILLARD, appointed a Senator by the Legislature of the State of
South Carolina, for the term of six years, commencing on the fourth day
of March last, and JOHN SMITH, appointed a Senator by the Legislature
of the State of New York, for the term of six years, commencing on the
fourth day of March last, respectively took their seats, and the oath
prescribed by law was administered to them: their credentials having been
read and filed during the last session.
On motion, by Mr. MILLEDGE, it was
_Resolved_, That the members of the Senate, from a sincere desire of
showing every mark of respect due to the memory of the Honorable ABRAHAM
BALDWIN, deceased, late a member thereof, will go into mourning for him
one month, by the usual mode of wearing a crape round the left arm.
On motion, by Mr. HILLHOUSE, it was
_Resolved_, That the members of the Senate from a sincere desire of
showing every mark of respect due to the memory of the Honorable URIAH
TRACY, deceased, late a member thereof, will go into mourning for him one
month, by the usual mode of wearing a crape round the left arm.
TUESDAY, November 3.
ANDREW MOORE, from the State of Virginia, attended.
The PRESIDENT communicated a letter, signed William Eaton, enclosing
the translation of a petition of Hamet Bashaw Caramalli, stating his
services and sufferings in behalf of the United States, in which, relying
on promises of remuneration, he hath exposed his life, and sacrificed all
his means, and praying relief; and the petition was read, and ordered to
lie for consideration.
THURSDAY, November 5.
_Removal of Federal Judges on Address from Congress._
Mr. TIFFIN submitted the following motion for consideration:
_Resolved, by the Senate and House of Representatives of the
United States of America in Congress assembled, two-thirds
of both Houses concurring_, That the following section
be submitted to the Legislatures of the several States,
which, when ratified and confirmed by the Legislatures of
three-fourths of the said States, shall be valid and binding,
as a part of the Constitution of the United States, in lieu of
the first section of third article thereof:
“The judicial power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress
may, from time to time, ordain and establish. The judges, both
of the Supreme and inferior courts, shall hold their offices
for ---- years, shall be removed by the President on the
address of two-thirds of both Houses of Congress requesting the
same, and shall, at stated times, receive for their services
a compensation, which shall not be diminished during their
continuance in office.”
MONDAY, November 9.
Mr. POPE, appointed a Senator by the State of Kentucky, produced his
credentials, which were read and ordered to lie on file.
FRIDAY, November 13.
_Slavery in Indiana Territory._
Mr. FRANKLIN, from the committee to whom were referred, on the 7th
instant, the resolutions of the Legislative Council and House of
Representatives of the Indiana Territory, on the propriety of suspending
the sixth article of compact contained in the Ordinance for the
government of the North-western Territory, passed the 13th day of July,
1787, together with a remonstrance of certain citizens of Clark County
against the said resolutions, made report; which was read, and ordered to
lie for consideration.
The report is as follows:
The Legislative Council and House of Representatives, in
their resolutions, express their sense of the propriety of
introducing slavery into their Territory, and solicit the
Congress of the United States to suspend, for a given number
of years, the sixth article of compact, in the Ordinance for
the government of the Territory north-west of the river Ohio,
passed the 13th day of July, 1787. That article declares:
“there shall be neither slavery nor involuntary servitude in
the said Territory.”
The citizens of Clark County, in their remonstrance, express
their sense of the impropriety of the measure, and solicit the
Congress of the United States not to act on the subject, so
as to permit the introduction of slaves into the Territory;
at least until their population shall entitle them to form a
constitution and State government.
Your committee, after duly considering the matter, respectfully
submit the following resolution:
_Resolved_, That it is not expedient at this time to suspend
the sixth article of compact for the government of the
Territory of the United States north-west of the river Ohio.
TUESDAY, November 17.
The PRESIDENT communicated a letter from JAMES FENNER, stating the
resignation of his seat in the Senate.
_Slavery in Indiana._
The Senate took into consideration the report of the committee to whom
was referred, on the 7th instant, the resolutions of the Legislative
Council and House of Representatives of the Indiana Territory, on the
propriety of suspending the 6th article of compact contained in the
ordinance for the government of the North-western Territory, and agreed
thereto; and,
_Resolved_, That it is not expedient, at this time, to suspend the 6th
article of compact for the government of the Territory of the United
States north-west of the river Ohio.
THURSDAY, November 19.
The credentials of ELISHA MATHEWSON, appointed a Senator by the
Legislature of the State of Rhode Island, in the place of JAMES FENNER,
elected Governor, were read.
FRIDAY, November 20.
Mr. MATHEWSON, from the State of Rhode Island, took his seat in the
Senate, and the oath prescribed by law was administered to him.
FRIDAY, November 27.
CHAUNCEY GOODRICH, appointed a Senator by the Legislature of the State
of Connecticut, to fill the vacancy occasioned by the death of the late
Hon. Uriah Tracy, attended, and his credentials were read; and the oath
prescribed by law was administered to him.
_Case of John Smith._
Mr. MACLAY offered the following resolution:
_Resolved_, That a committee be appointed to inquire and report
to the Senate their opinion whether John Smith, a Senator from
the State of Ohio, ought not to be expelled from the Senate,
in consequence of the part which he took in the conspiracy of
Aaron Burr, against the peace and prosperity of the United
States, or what other steps, in their opinion, it may be
necessary and proper, under the present circumstances, for the
Senate to adopt.
Mr. HOPE moved to amend this resolution; to make way for which amendment,
Mr. MACLAY withdrew his resolution.
Mr. THRUSTON offered the following resolution as an amendment, omitting
that part in italics, which Mr. JONES moved as an amendment to the
amendment:
_Resolved_, That a committee be appointed to inquire whether
it be compatible with the honor and privileges of this House,
that John Smith, a Senator from the State of Ohio, against
whom bills of indictment were found at the Circuit Court of
Virginia, held at Richmond in August last, for treason and
misdemeanor, should be permitted any longer to hold a seat
therein; and that the committee do inquire into _all the facts
regarding the conduct of Mr. Smith, as an alleged associate of
Aaron Burr_, and report the same to the Senate.
Mr. HILLHOUSE objected to the resolution on the ground of allowing the
committee too wide a latitude.
Mr. ADAMS vindicated the resolution from this objection.
The question was then taken on the resolution offered by Mr. THRUSTON,
and amended by Mr. JONES, and carried without a division; and Messrs.
ADAMS, MACLAY, FRANKLIN, S. SMITH, POPE, THRUSTON, and ANDERSON, were
appointed the committee.
WEDNESDAY, December 9.
WILLIAM H. CRAWFORD, appointed a Senator by the Legislature of the State
of Georgia, to fill the vacancy occasioned by the death of Abraham
Baldwin, attended and produced his credentials, which were read, and the
oath prescribed by law was administered to him.
FRIDAY, December 18.
_Embargo._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate and House of Representatives of the United
States_:
The communications now made, showing the great and increasing
dangers with which our vessels, our seamen, and merchandise,
are threatened on the high seas and elsewhere, from the
belligerent powers of Europe, and it being of the greatest
importance to keep in safety these essential resources, I deem
it my duty to recommend the subject to the consideration of
Congress, who will doubtless perceive all the advantages which
may be expected from an inhibition of the departure of our
vessels from the ports of the United States.
Their wisdom will also see the necessity of making every
preparation for whatever events may grow out of the present
crisis.
TH. JEFFERSON.
DECEMBER 18, 1807.
_Ordered_, That the Message, together with the papers therein referred
to, be committed to Messrs. SMITH of Maryland, ADAMS, ANDERSON, BRADLEY,
and GREGG, to consider and report thereon; and that the same be
considered as confidential.
MONDAY, December 21.
Mr. REED, from the State of Maryland, attended.
THURSDAY, December 31.
_Case of John Smith._
Mr. ADAMS stated that the committee appointed on the 27th of November
last, “to inquire whether it be compatible with the honor and privileges
of this House that JOHN SMITH, a Senator from the State of Ohio, against
whom bills of indictment were found at the Circuit Court of Virginia,
held at Richmond in August last, for treason and misdemeanor, should be
permitted any longer to have a seat therein,” were ready to report: and
he made the following motion, which was read and agreed to:
_Ordered_, That John Smith, a Senator from the State of Ohio,
be notified by the Vice President to attend in his place.
The VICE PRESIDENT accordingly notified Mr. SMITH in the words following:
SIR: You are hereby required to attend the Senate in your place
without delay.
By order of the Senate:
GEO. CLINTON,
_President of the Senate._
JOHN SMITH, Esq., _Senator from the State of Ohio._
And Mr. SMITH attended.
Whereupon, Mr. ADAMS made a report from the committee last mentioned; and
the report was read, and three hundred copies thereof were ordered to be
printed for the use of the Senate.
The report was read, ending with the following resolution:
_Resolved_, That John Smith, a Senator from the State of Ohio,
by his participation in the conspiracy of Aaron Burr, against
the _peace_, _union_, and _liberties_ of the people of the
United States, has been guilty of conduct incompatible with his
duty and station as a Senator of the United States. And that
he be therefor, and hereby is, expelled from the Senate of the
United States.
The documents accompanying the report are very voluminous. Among them is
the answer of Mr. JOHN SMITH, covering ninety-six manuscript pages.
MONDAY, January 4, 1808.
JAMES A. BAYARD, from the State of Delaware, attended.
The PRESIDENT communicated a letter from JOHN SMITH, a Senator from the
State of Ohio; which was read.
THURSDAY, January 7.
WILLIAM B. GILES, from the State of Virginia, attended.
FRIDAY, January 8.
_Executive Contingent Fund._
Another Message was received from the PRESIDENT OF THE UNITED STATES, as
follows:
_To the Senate and House of Representatives of the United
States_:
I now render to Congress the account of the fund established
for defraying the contingent expenses of Government for the
year 1807. Of the sum of $18,012 50, which remained unexpended
at the close of the year 1806, $8,731 11 have been placed
in the hands of the Attorney-General of the United States,
to enable him to defray sundry expenses incident to the
prosecution of Aaron Burr and his accomplices, for treasons and
misdemeanors alleged to have been committed by them. And the
unexpended balance of $9,275 39 is now carried, according to
law, to the credit of the surplus fund.
TH. JEFFERSON.
JANUARY 8, 1808.
The Message and papers therein referred to were read.
WEDNESDAY, January 13.
Mr. FRANKLIN, from the State of North Carolina, attended.
MONDAY, February 1.
_Claim of Thomas Paine._
The PRESIDENT communicated an address, signed Thomas Paine, stating his
claim on the United States for services rendered during the Revolutionary
war, and his title to remuneration. The address was read, and is as
follows:
NEW YORK, _January 21, 1808_.
_To the honorable the Senate of the United States_:
The purport of this address is to state a claim I feel myself
entitled to make on the United States, leaving it to their
Representatives in Congress to decide on its worth and its
merits. The case is as follows:
Towards the latter end of the year 1780, the continental money
had become so depreciated (a paper dollar not being more than a
cent) that it seemed next to impossible to continue the war.
As the United States were then in alliance with France, it
became necessary to make France acquainted with our real
situation. I therefore drew up a letter to Count de Vergennes,
stating undisguisedly the true case, and concluding with the
request whether France could not, either as a subsidy or a
loan, supply the United States with a million sterling, and
continue that supply, annually, during the war.
I showed the letter to Mr. Marbois, Secretary to the French
Minister. His remark upon it was, that a million sent out of
the nation exhausted it more than ten millions spent in it.
I then showed it to Mr. Ralph Izard, member of Congress from
South Carolina. He borrowed the letter of me, and said, “We
will endeavor to do something about it in Congress.”
Accordingly, Congress appointed Colonel John Laurens, then
aid to General Washington, to go to France and make a
representation of our situation, for the purpose of obtaining
assistance. Colonel Laurens wished to decline the mission, and
that Congress would appoint Colonel Hamilton; which Congress
did not choose to do.
Colonel Laurens then came to state the case to me. He said he
was enough acquainted with the military difficulties of the
Army, but that he was not enough acquainted with political
affairs, nor with the resources of the country, to undertake
the mission; “but,” said he, “if you will go with me, I will
accept it;” which I agreed to do, and did do.
We sailed from Boston in the Alliance frigate, Captain Barry,
the beginning of February, 1781, and arrived at L’Orient the
beginning of March.
The aid obtained from France was six millions of livres as a
present, and ten millions as a loan, borrowed in Holland, on
the security of France.
We sailed from Brest in the French Resoulue frigate the first
of June, and arrived at Boston on the 25th of August, bringing
with us two millions and a half of livres, in silver, and
convoying a ship and a brig laden with clothing and military
stores. The money was transported with sixteen ox teams to the
National Bank at Philadelphia, which enabled the army to move
to Yorktown to attack, in conjunction with the French army
under Rochambeau, the British army under Cornwallis. As I never
had a cent for this service, I feel myself entitled, as the
country is now in a state of prosperity, to state the case to
Congress.
As to my political works, beginning with the pamphlet _Common
Sense_, published the beginning of January, 1776, which
awakened America to a declaration of independence, as the
President and Vice President both know, as they were works done
from principle, I cannot dishonor that principle by asking any
reward for them. The country has been benefited by them, and I
make myself happy in the knowledge of it It is, however, proper
for me to add, that the mere independence of America, were
it to have been followed by a system of government modelled
after the corrupt system of the English Government, it would
not have interested me with the unabated ardor it did. It was
to bring forward and establish the representative system of
government, as the work itself will show, that was the leading
principle with me in writing that work, and all my other works,
during the progress of the Revolution. And I followed the same
principle in writing the _Rights of Man_, in England.
There is a resolve of the old Congress, while they sat at New
York, of a grant of three thousand dollars to me. The resolve
is put in handsome language, but it has relation to a matter
which it does not express. Elbridge Gerry was chairman of the
committee who brought in the resolve. If Congress should think
proper to refer this memorial to a committee, I will inform
that committee of the particulars of it. I have also to state
to Congress, that the authority of the old Congress was become
so reduced towards the latter end of the war as to be unable
to hold the States together. Congress could do no more than
recommend, of which the States frequently took no notice; and
when they did, it was never uniformly.
After the failure of the five-per-cent duty, recommended by
Congress, to pay the interest of a loan to be borrowed in
Holland, I wrote to Chancellor Livingston, then Minister for
Foreign Affairs, and Robert Morris, Minister of Finance,
and proposed a method for getting over the whole difficulty
at once; which was, by adding a Continental Legislature to
Congress, who should be empowered to-make laws for the Union,
instead of recommending them; so the method proposed met with
their full approbation. I held myself in reserve, to take the
subject up whenever a direct occasion occurred.
In a conversation afterwards with Governor Clinton, of New
York, now Vice President, it was judged that, for the purpose
of my going fully into the subject, and to prevent any
misconstruction of my motive or object, it would be best that
I received nothing from Congress, but leave it to the States,
individually, to make me what acknowledgment they pleased.
The State of New York made me a present of a farm, which,
since my return to America, I have found it necessary to sell;
and the State of Pennsylvania voted me five hundred pounds,
their currency. But none of the States to the east of New
York, or the south of Philadelphia, ever made me the least
acknowledgment. They had received benefits from me, which they
accepted, and there the matter ended. This story will not tell
well in history. All the civilized world know I have been of
great service to the United States, and have generously given
away talent that would have made me a fortune.
I much question if an instance is to be found in ancient or
modern times of a man who had no personal interest in the cause
he took up--that of independence and the establishment of a
representative system of government, and who sought neither
place nor office after it was established--that persevered in
the same undeviating principles as I have done, for more than
thirty years, and that in spite of difficulties, dangers, and
inconveniences, of which I have had my share.
THOMAS PAINE.
MONDAY, February 22.
_Removal of Federal Judges on Address from Congress._
Mr. MACLAY, agreeably to instructions from the Legislature of the State
of Pennsylvania to their Senators in Congress, submitted the following
resolution:
_Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled, two-thirds of
both Houses concurring_, That the first section of the third
article of the Constitution of the United States be so altered
and amended “that the judges of the courts thereof shall hold
their offices for a term of years; that they shall be removed
by the President of the United States on the address of the
majority of the members present, of the Senate and House of
Representatives of the United States in Congress assembled;
and that on all trials of impeachment for high crimes and
misdemeanors, a majority of the Senate shall be competent to
conviction.”
And the resolution was read, and referred to Mr. TIFFIN and others,
the committee appointed the 25th of January last, on this subject, to
consider and report thereon.
_Death of Hon. John Dickinson._
Mr. WHITE.--Mr. President: It is with much pain and regret, sir, that
I rise to announce to the Senate the irreparable loss our country
has sustained in the death of one of her worthiest citizens and most
distinguished patriots. Time has measured and told the days of another
venerable sage of the Revolution. JOHN DICKINSON, the illustrious
cotemporary and friend of Washington and Franklin, is now no more--his
head and his heart devoted to the service and love of his country, till
his locks were bleached by the frosts of more than seventy winters,
have now descended in silence to the grave. No humble eulogy of mine
shall attempt to approach his exalted merit. The happiness of his
fellow-citizens was his only aim, and upon the grateful hearts of his
countrymen is indelibly engraven the dearest memento of his wisdom and
his worth. Those who shared his personal acquaintance will never forget
his private virtues--volumes from his pen, that do honor to the age, that
will be read and admired as long as the love of science and freedom shall
be cherished, record his inflexible patriotism; and the liberties of this
country, which he contributed so essentially in establishing, will I
hope long, very long indeed, sir, continue to be the proud and unshaken
monument of his fame. The feelings of every gentleman of this honorable
body will I am sure be in unison on the motion I am about to propose; it
is an humble tribute of respect to the memory of the deceased, in the
form of the following resolution:
_Resolved, unanimously_, That the Senate is penetrated with
the full sense of the merit and patriotism of the late JOHN
DICKINSON, Esq., deceased, and that the members thereof do
wear crape on the left arm for one month, in testimony of the
national gratitude and reverence towards the memory of that
illustrious patriot.
This resolution was immediately adopted.
WEDNESDAY, March 2.
_Impressment of American Seamen._
The following Message was received from the PRESIDENT OF THE UNITED
STATES:
_To the Senate of the United States_:
In compliance with a resolution of the Senate, of November 30,
1807, I now transmit a report of the Secretary of State on the
subject of impressments, as requested in that resolution. The
great volume of the documents, and the time necessary for the
investigation, will explain to the Senate the causes of the
delay which has intervened.
TH. JEFFERSON.
MARCH 2, 1808.
* * * * *
DEPARTMENT OF STATE, _Feb. 29, 1808_.
Agreeably to a resolution of the Senate of the 30th November
last, the Secretary of State has the honor to submit to the
President, for the information of the Senate, the statements
herewith enclosed, from No. 1 to 18, inclusive.
No. 1. A statement of impressments from American vessels into
the British service, since the last report made from this
department on the 5th March, 1806, founded upon documents
transmitted in the first instance to this office.
Those from No. 2 to 13 inclusive, being a series of returns and
abstracts received from General Lyman, the agent of the United
States at London, giving an account of the applications made by
him in relation to seamen, from 1st April, 1806, to 30th June,
1807, and of the result of those applications, and exhibiting
other particulars required by the resolution.
Not having received any returns from the West Indies since the
date of the last report to the House of Representatives on
this subject, nor from General Lyman for the quarter ending
on the 1st January last, the Secretary of State has not the
means at present of giving, with any degree of precision, the
information asked for in the last clause of the resolution.
From the returns in the office it would appear that four
thousand two hundred and twenty-eight American seamen had been
impressed into the British service since the commencement of
the war, and that nine hundred and thirty-six of this number
had been discharged, leaving in that service three thousand two
hundred and ninety-two. General Lyman, in a letter dated on the
21st October, 1807, estimates the American seamen now detained
in the British service at a number greatly beyond what is here
stated; but he does not give the data on which his estimate is
made.
All which is respectfully submitted.
JAMES MADISON.
The PRESIDENT _of the United States_.
The Message and papers were read, and ordered to lie for consideration.
FRIDAY, April 1.
_Case of John Smith._
This being the day assigned for hearing counsel, the PRESIDENT said the
Senate were ready to hear the counsel of JOHN SMITH, in any thing they
had to offer why the resolution (for expelling him) should not be adopted.
Mr. ADAMS submitted it to the Senate, whether it was not most proper that
the counsel should be permitted to show cause why the report should not
be adopted. He remarked that in like cases the whole report, comprising
the grounds on which the final resolution was founded, had been the
subject of discussion, and of approbation or rejection. He considered
this the correct course, that the world and posterity might know the
grounds on which the Senate acted.
A short conversation ensued on this suggestion of Mr. ADAMS, in which
the principles of the report were incidentally noticed. In reply to
Mr. ADAMS’ remarks, it was said that it could not be expected that a
deliberative body, however agreed in the guilt or innocence of the
accused, would be able to unite in their agreement to a complicated
report, embracing a variety of abstract and disputable principles.
Mr. GILES intimated the idea that this discussion was premature; that, as
the Senate had by their vote determined to hear counsel on the report, it
was proper that this course should, in the present stage of the business,
be pursued. After having heard counsel, it would be for the Senate, as
they then should see fit, either to decide on the resolution alone, or on
the report connected with it.
This suggestion having been acquiesced in, without any vote,
Mr. FRANCIS S. KEY, of counsel for Mr. SMITH, asked for subpœnas for
Messrs. DAVENPORT, MORROW, and STURGES, of the House of Representatives,
to attest the credibility of witnesses; and likewise for a subpœna for
General Wilkinson.
It was intimated that the usual mode of proceeding in such a case was to
request the attendance of the members of the other House.
Mr. KEY then opened the defence by a few very concise preliminary
remarks. He observed that the counsel of Mr. SMITH felt highly gratified
in appearing before the Senate with a body of testimony sufficiently
strong to flatter them with the assurance of a favorable result; that all
the apprehensions which had arisen from the distance and the extent of
the testimony were almost removed; and that although testimony was still
coming in, they were fully satisfied with that they had already received.
He said they would be able to show that the testimony of Elias Glover was
not worthy of credit. He admitted that if this testimony were correct,
JOHN SMITH was unworthy of his seat; but they would be able entirely to
destroy its weight by destroying his credibility. They would, likewise,
be able to show that there was nothing else in the other testimony which
materially affected the character of the accused. They would also, after
this, enter into a consideration of the principles on which a decision in
this case ought to be made; and endeavor to show that that decision could
only be made according to legal evidence; that the Senate were bound by
judicial principles, and that the accused was consequently entitled to
the same privileges as he would be in a court of justice.
Mr. KEY said he should first proceed to offer depositions to discredit
Elias Glover. He would show that he had not only made charges, which
were contradicted by respectable testimony, but likewise by his own
declarations at other times. He would commence with the proof of his
general character, and show that it had been such, ever since he entered
into life, as to destroy the weight of his testimony; he would show
that he had in several instances perjured himself. He would then show
his inducements to perjure himself in this case, by establishing the
existence of a combination, of which he was the head, to ruin Mr. SMITH.
Mr. KEY was about to read sundry depositions taken at Newtown,
Connecticut. Previous to this he read the certificates of notice given by
Mr. SMITH to Mr. Glover, of his purpose to take depositions relative to
his character. From these it appeared that Mr. SMITH had, on the 10th of
February, notified him of his intention to take depositions at Delhi, New
York, on the 15th February, at Newtown, Connecticut, on the 20th, in the
Mississippi Territory on the 25th, at Cincinnati the ----
Mr. CRAWFORD objected to reading these depositions. He observed that
they went seriously to affect the character of Mr. Glover; that the
Senate had, in such a case, prescribed that the depositions should only
be received in case of reasonable notice having been given to the person
whose character it was intended to discredit: that in this case no such
reasonable notice had been allowed; that the notice was too short to be
of the least use to Mr. Glover.
Mr. HARPER, of counsel for Mr. SMITH, observed that as much time had
been given by Mr. SMITH as he could possibly spare. The times fixed for
taking depositions at the several places, had been as distant as they
could be, consistently with Mr. SMITH’s getting the testimony forwarded
to the seat of Government by the 1st of March; the period then fixed by
the Senate for his hearing.
Mr. S. SMITH stated that, although the resolution fixing the 1st of March
for a hearing had passed on the 20th of January, the notices of Mr. SMITH
were not dated till the 10th of February, at Berrysville, in Virginia,
where he had put them into the post office.
A short debate followed, in which the principal circumstances noticed
were, that according to Mr. SMITH’s affidavit, on which the first
postponement had taken place, it was not expected that depositions
to discredit Elias Glover’s would be taken at any other place than
Cincinnati; that, if these depositions, though informal, were read, they
would be taken by the Senate only for what they were worth, and that, if
ex parte evidence was received in favor of Mr. SMITH, it could not be
rejected when against him.
On reading the depositions, seventeen members being a majority, rose in
the affirmative.
The counsel then read the depositions of Calvin Chamberlain, Henry Peck,
jun., Ely Perry, William Meeker, Daniel Wheeler, John Norfrog, Luther
Bulkley, Zalmon Tousy, jun., Cyrus Sprindle, James Nicholls, Solomon
Booth, Oliver Tousy, Gideon Fisher, Stephen Beers, jun., N. Hays, Joseph
Michin, Solomon M. Sackriden, James Monger, Homer R. Phelps, Joshua H.
Brent, Gabriel North, John T. Moore, Philip Gabehart, Cyrenus Foote,
Roswell Hodgkiss, Benijah Beardley, E. K. Granger, Henry Tyler, John B.
Judson, Samuel Stephen, George Fost, Asa Tyler, Nathan T. Tyler, John S.
Gano, Francis Dunlavy, John Sellman, Stephen Macfarland, George Gordon,
Edward H. Stall, Thomas N. Still.
These depositions are made by persons residing in the States of
Connecticut, New York, and Ohio.
About four o’clock the Senate adjourned.
TUESDAY, April 5.
Mr. ANDERSON, from the committee to whom was referred the bill making
provision for the disposal of the public lands of the United States in
the State of Tennessee, reported it with further amendments; which were
read for consideration.
_Case of John Smith._
The Senate resumed the consideration of the first report of the committee
appointed to inquire into the conduct of JOHN SMITH, a Senator from the
State of Ohio, as an alleged associate of Aaron Burr.
Mr. SMITH attended, together with Messrs. Harper and Key, counsel on his
behalf.
Mr. HARPER read the depositions of Joseph H. Brett, John T. Moore,
Gabriel North, Erastus Root, C. Keiser, Isaac G. Burnett, David Zeigler,
John Bradford, Jacob Broadwell, Jos. Van Horne, Samuel Hildige, Geo.
Williamson, M. Williams, and William Goforth. Messrs. Van. Rensselaer,
Jeremiah Morrow, Tallmadge, Bacon, and Davenport, of the House of
Representatives, and Mr. Tiffin, of the Senate, were then examined, and
attested to the general respectability of character of several of the
witnesses from whom depositions had been received on the part of Mr.
SMITH.
Mr. KEY then rose to show why the report of the committee should not be
adopted, and after taking a legal view of the rules of evidence which
should govern the admissibility of evidence in this inquiry, and arguing
that the Senate could inquire into nothing which was indictable at common
law, he proceeded to the facts of the case, and said:
Having now, sir, stated these objections against the present inquiry,
and more particularly and more earnestly against the principles which
the honorable committee have recommended to govern it, I gladly proceed
to discharge the remaining part of my duty, by submitting a few remarks
upon the testimony exhibited upon this occasion. It will be readily
admitted that, excepting Elias Glover, no witness deposes directly and
positively to the guilt of the honorable member accused. Their testimony
is wholly circumstantial, and I hope to be enabled to show, that from
no circumstance they state can guilt be fairly inferred. But the chief
question to be ascertained, the point on which this inquiry will be found
wholly to turn, is the degree of credit which is to be given to the
testimony of Elias Glover. I am much gratified, sir, in recollecting the
importance attached to the evidence of this witness in the commencement
of this proceeding, and the almost universal acknowledgment that Mr.
Smith’s fate depended upon the truth or falsehood of his testimony. We
are most willing to rest it upon this issue; we could not ask a more
favorable one than that which compels every man before he can believe
in the guilt of the accused, to the necessity of first believing in the
truth of Elias Glover, and this I now proceed to show is impossible.
The first question asked on these occasions, is, “What is the general
character of the witness?” We have traced this person, sir, from his
first setting out in life, have followed him into every place where he
has lived, and put this question to his neighbors. How is it answered?
At Newtown, Connecticut, where he first established himself, thirteen
deponents declare him unworthy of credit; with some slight difference
of expression, this is clearly and positively affirmed by them all.
One of them, however, (Mr. Oliver Tousy, I believe,) states that he
made particular inquiries of almost all the respectable persons in and
about Newtown, and that he inquired of none but respectable persons;
that, from the result of these inquiries, he is induced to believe that
was a respectable jury taken from Newtown and Elias Glover sworn as a
witness before them he would not be believed. It seems, sir, that he
soon changed so disagreeable a situation. We next hear of him at Delhi,
in Delaware County, New York. From this place, sir, we have produced to
you the depositions of twenty-one witnesses, who all concur in a similar
opinion of his infamy, using, if possible, still stronger language than
the witnesses from Newtown. By what means can a character thus charged
be defended? Can it be said that these men are selected, and are his
enemies? They swear they are not. That they are not themselves credible?
Many of them were, fortunately, known to the honorable members of the
other House, who have told you they are respectable. Among them are
the chief judge and the associates, and the sheriff of the county in
which he practised, of whom one is now a Senator of New York, and two
of the others members of Assembly; nor can such testimony be outweighed
by that which his father and his uncle have collected in support of
his character. There are few men so infamous but that some persons
may be always found to declare a good opinion of them, and what sort
of persons these are who have said they never heard any thing against
the reputation of Elias Glover, it may not be difficult to ascertain.
Upon this subject, it is only necessary to call the attention of the
Senate to the manner in which those depositions in New York are proved
to have been taken by his uncle, David Beers, who is himself one of the
deponents. Ezekiel K. Granger states that this man used every expedient
to prevent the attendance of Mr. Smith’s attorney; that he refused to
examine any witness in his presence, and that nearly half of whom he
did procure to depose, are the relations of Glover; a circumstance
on which the deponents are entirely silent. In addition to this, he
is proved by one of those persons to have altered and misstated his
testimony. Surely his character is very far from receiving any support
from depositions thus taken. We have also produced a record from Delaware
County court, which, though it may not prove him guilty of forgery, yet
contains evidence charging him with an act almost equally dishonorable.
From this accumulating weight of disgrace, thus increasing with his
progress in depravity, he again finds it necessary to escape, and
wisely determines to fix upon a still more distant residence. The last
two or three years of his life have been spent in the State of Ohio,
and, during that period, I shall be able to show that he has reached a
height of profligacy even beyond the promise of his former years. The
numerous witnesses from Cincinnati, though not particularly questioned
as to his general character, (being examined to impeach his credit on
other grounds,) yet show the degree of estimation in which he is there
held; and thus, sir, we flatter ourselves with having produced the most
ample proof that truth is not to be expected from this witness; that he
would not shrink from perjury, when prompted to accomplish a favorite
object. That such an object was presented to him on this occasion; that
the inducements to his crime were considerable, is obvious. We are
informed by many of the deponents from Cincinnati, particularly by Mr.
Burnett and Mr. St. Clair, that he had long felt and evinced the most
malignant animosity towards Mr. Smith. The existence of this disposition
in himself, and others associated with him in the same dishonorable
cause, is further evidenced by the base and unmanly means they have used
during this inquiry. I allude, sir, to their refusal to give evidence for
Mr. Smith, and then secretly sending their depositions to the Senate;
conduct in every respect worthy of the friends of Elias Glover; and
also to those anonymous slanders which have been forwarded (doubtless
from the same source) to almost every honorable member of this House.
Of these deponents, and the support their testimony attempts to give
to the character of Glover, little need be said. I cannot suppose it
possible the Senate will receive this evidence, or, if received, that
any reliance will be placed upon it. The profligacy, however, of the
principal one among them is so palpable and audacious that it deserves
some little notice; I mean William McFarland, the friend to whom Elias
Glover alludes as having been present when Mr. Smith acknowledged his
participation in the conspiracy. This man, sir, has had the effrontery
(after refusing to answer Mr. Smith’s interrogatories) to send on to the
Senate an affidavit in which he states that Elias Glover’s deposition is
substantially correct; yet he had been sworn at Richmond, and we have his
affidavit, and again at Chilicothe before the grand jury, and we have a
statement of his evidence. They afford the most direct contradiction of
his present deposition that can be conceived. Unless Mr. McFarland then
will condescend to tell us, how are we to ascertain which is true and
which is false? As it now stands we have, in addition to his declarations
to General Gano and Mr. Burnett, one or two of his depositions acquitting
Mr. Smith, to set off against the one which accuses him. Of the
other deponents I shall say no more than what appears from their own
representation, (and nothing more harsh could well be said of them,) they
are the friends of William McFarland and Elias Glover. To have obtained
the enmity of men disgraced by such a friendship is no small honor to Mr.
Smith.
However conclusive this proof of the general character of this witness
may appear, it yet constitutes but a small part of the infamy with which
we have overwhelmed him. We have shown this capacity for perjury, and
the disposition he must have felt to exert it on this occasion. I now
proceed to point out the actual commission of it, in the most wilful,
premeditated, and repeated instances. This witness, it seems, appeared
before a grand jury at Chilicothe, in January last, which body had the
penetration to discern his falsehoods, though no testimony was produced
to discredit him. One of the jurors, Mr. Ethan Stone, has stated to us
in his deposition the substance of his examination on that occasion,
from his notes, which he tells us he was very particular in taking. His
statement is also corroborated by General Gano and Colonel Armstrong, who
were members of the same jury. We are thus informed that Elias Glover
on that occasion declared “that he had never published or offered for
publication any piece in ridicule of the measures taken by Government
to arrest the progress of Burr’s conspiracy.” Of the falsehood of this
assertion we have produced the most undeniable evidence.
The editor of the Western Spy, David L. Carney, deposes that Glover
brought him such a piece which he refused to publish. Ephraim Morgan
swears that he was present at the time, and confirms this statement. If
Mr. Glover is disposed to dispute the point with these two witnesses, we
will call a third, to whom, however objectionable, he must submit. This
is no other than himself. He told Mr. Arthur St. Clair (as that gentleman
states in his deposition) that “he had published one piece, ridiculing
the measures taken to stop Burr, and had written another (which he
offered to show him) which the printers had refused to publish.” He again
told the same to Mr. Jacob Burnett, and urged him to join in squibbing
the measures of Government. Can anything be more complete and confounding
than this detection? Let us view another instance. The same grand juryman
informs us that during his examination he declared, “that he never had
any correspondence with Colonel Burr;” these are the words taken from Mr.
Stone’s notes. And yet he tells Captain Nicholls, whose deposition we
have produced, that he had written to Burr, and that he daily expected to
hear from him. In addition to this, the testimony of Mr. George Russell
is before the Senate, who is personally known to several of the honorable
members of this House, who declares that Glover actually gave him a
letter to carry to Colonel Burr, with injunctions to burn it if he did
not see him.
I might, sir, point out other instances of falsehoods equally gross,
but it cannot be necessary to take a particular notice of each. I shall
therefore only call the attention of the Senate to a circumstance which
exhibits a number of them in one general point of view. He appears
from his own testimony to have been the person who furnished Matthew
Nimmo with his information relative to Mr. Smith’s participation in
the conspiracy. Now, the information he gave Nimmo should certainly
agree with that which he now gives us in his deposition. Yet they are
essentially different, nay, even directly contradictory, as is obvious
from comparing them.
But, sir, independent of all these circumstances, I would ask nothing
more to discredit the witness than the internal evidence of falsehood
which his deposition bears. What can be more incredible than the facts
he states? Mr. Smith is an associate in Burr’s conspiracy, and yet
never commits an act which evinces the least participation in it, never
affords it the least support, never endeavors to interest his friends and
dependents in it, but would have remained wholly unknown and unsuspected
but for his disclosure to Elias Glover; and this confidant, whom he thus
highly trusts, was at that very moment, and before and afterwards, his
open and irreconcilable enemy.
He further tells us that he received this communication “under the
strictest injunctions of secrecy; that to divulge it on any occasion less
pregnant with evil would reflect infamy and disgrace upon his character
and conduct, and that he therefore balanced between his honor and his
patriotism, before he could divulge it.” Now, can Mr. Glover reasonably
expect any one to believe this? And if we were thus to indulge him, how
much reputation would he save by it? Does a man of character ever allow
any circumstances, however “pregnant with evil,” to induce him to receive
a communication, promise to conceal it, and then divulge it? Where, sir,
does he find a sanction for a doctrine so absurd and detestable? Does
that sacred volume which he has dared to profane with his touch, and
thus openly contemns, allow any such dispensation from the eternal and
immutable laws which it awfully commands us on all occasions to observe?
Is any such ridiculous exception to be there found, which shall justify a
man in violating the plainest rule of morality and becoming a scoundrel
for the good of his country? But even if this pretext could account for
his disclosure to Nimmo, in November, it can be no pretence for his
afterwards voluntarily and certainly unnecessarily reducing it to an
affidavit in February. Some delay in making out this deposition might
be necessary, from the nice balance which he tells us he was adjusting.
With his honor in one scale and his patriotism in the other, it is not
wonderful that it should take him a month or two to ascertain which of
these two straws was the heaviest; but it is singular that his patriotism
should not preponderate till all symptoms of danger to his country had
disappeared--till the conspiracy was completely defeated.
There are, sir, two other depositions relative to the credit of this
witness which I had intended to notice. Mr. Longworth details to us a
conversation held between him and Glover, early in February, and just
after he had made his affidavit. Glover then told him that he had not
“acted against Mr. Smith;” that “he thought him unjustly accused,” and
believed “he had no share in the conspiracy.” In the April following, Dr.
Lanier’s deposition informs us of an interview (at which he was present)
between Mr. Smith and Glover. How strongly marked is the conduct of
each on that occasion. In Mr. Smith we see the firmness of an innocent
man, indignantly daring forth his slanderer, and in the other a soul as
contemptible for its meanness as detestable for its vices, descending (if
indeed such a creature can properly be said to descend to any thing) to
the grossest falsehoods and most humiliating prevarications.
I have done, sir, with this witness. I fear I have detained the Senate
unreasonably upon this subject. I therefore leave him to that contempt
which I trust he will meet with here, and to that punishment which public
justice will hereafter inflict upon him. For should he escape from this,
I have no doubt it will be owing more to his own agility than to the
crippled condition of our courts. Nor shall I have much apprehensions
of his acquittal, even if he is allowed to plead that “he is possibly
innocent.”
I now proceed to make a few hasty observations upon the circumstantial
testimony offered by other witnesses in support of this accusation, and
first by Peter Taylor. The circumstances principally relied on in the
statement of this witness is the conversation which he details between
Mr. Smith and himself, and particularly the charge which Mr. Smith, he
says, gave him “not to go to a tavern, lest the people should sift him
with questions.” Admitting this conversation to be correctly repeated,
nothing can be more unfair and unreasonable than to infer from it that
Mr. Smith was concerned in the conspiracy, or even acquainted with its
object. May it not be more properly attributed to his knowledge of the
public agitation, which Mr. Burr’s movements had excited, his belief that
they were innocent, and his apprehensions that this agitation might be
dangerously increased by Peter Taylor’s representation and exaggerations
of Mrs. Blannerhasset’s alarm. There are various other motives equally
pure to which this direction might have been owing, and it would
therefore be unjust to attribute them to a criminal one. It could not
have arisen from any fears in Mr. Smith that this man would disclose any
of the plans of the conspirators. He had himself already “sifted him with
questions” and could learn nothing, and therefore could not have supposed
that others would be more successful.
But, sir, this admission is fully as unreasonable as the conclusion
attempted to be drawn from it. We do not impeach the character of
Peter Taylor; we do not say that he has wilfully misrepresented this
conversation, but we deny him that degree of intelligence, recollection,
and accuracy, so essential to a witness who is to repeat a conversation
with necessary correctness. Can this honorable House infer guilt from
words, without very strong evidence that they are accurately related? The
least variation, the suppression or addition of a syllable, may make the
most material difference. May he not have misunderstood Mr. Smith? May
he not have forgotten parts of the conversation, and be indistinct and
confused in his recollection of it? We have, sir, among these depositions
a most remarkable instance, in which two gentlemen, both respectable and
intelligent, undertake to detail to us the particulars of one of Mr.
Smith’s conversations, (I mean Col. Taylor and Dr. Sellman,) and their
statements are directly contradictory. Let us now look for a moment at
the deposition of this witness, and see whether it bears those marks
of accuracy which should entitle him to attention. Besides that gross
stupidity so observable in every sentence of it, there are several of
the most palpable misstatements contained in it. First he tells us that
Dudley Woodbridge was on the bank of the river when the boats left
the island, after midnight, and yet that person and the man who slept
with him, depose that he was not out of bed after 10 o’clock. Again he
states, in his last deposition, that when he went to Mr. Smith’s they
had never seen each other before, and yet on his examination at Richmond
he had stated that Mr. Smith knew him; and this strange contradiction
is made, although the statement of his former evidence, in the Richmond
Enquirer, was but the moment before read over to him, and acknowledged
to be correct. There is one other remarkable instance, which shows
that he cannot even remember with any tolerable distinctness his own
conversations. On the statement of his evidence at Richmond he tells us
that when Blannerhasset and himself were returning to the island, after
he had left Mr. Smith’s, he was urged by him to accompany him in this
expedition, that he refused all the honors offered him, unless he should
be permitted to take his wife with him. Now, sir, he could have said no
such thing to Blannerhasset, for his wife had been dead for a month or
two; he himself admits in his subsequent deposition that she died in
September, and this conversation took place late in October or early in
November following.
It is totally immaterial to what cause these palpable misstatements are
to be attributed; they essentially affect his accuracy as a witness, and
show how little reliance is to be placed on this part of the evidence.
There are various other circumstances which have been collected by the
malignant industry of Mr. Smith’s enemies, in that strict scrutiny
to which all his actions have been subjected, and these have been
exaggerated and distorted till they were made to bear some suspicious
appearances. Of these it can be necessary to say but little. I rejoice
that Mr. Smith has been enabled to present so complete and satisfactory
an explanation of them. Of his entertaining Colonel Burr at his house I
shall say nothing, since if that fact merited consideration, it would
equally criminate most of the respectable people in Cincinnati, and
particularly Colonel Taylor himself, who informed us that he waited on
Colonel Burr and invited him to dinner.
But it is said he corresponded with Colonel Burr; true, sir, but in
what manner? Not in cipher, as it is well known the associates in this
project made their communications to each other; or in any secret manner
whatever. Mr. Smith immediately and publicly speaks of it. We have
offered the depositions of many of the first characters in that country,
to whom Mr. Smith showed these letters just after they were written;
of one particularly who was present when he received Colonel Burr’s
answer from the post office, and to whom he instantly handed it. We have
produced to you these two letters and they contain nothing criminal;
nothing but what persons in their situation and with their views might
be supposed to have written. Nor can there be the least pretence for
supposing they were fabricated for the purpose of removing suspicions.
For at the time they were shown by Mr. Smith he was suspected by nobody,
nor had he any reason to suppose he ever should be.
He has been also charged with receiving and forwarding despatches from
Blannerhasset to Burr. This circumstance is mentioned by Col. Taylor, as
one which operated to Mr. Smith’s disadvantage. Now, sir, he has shown
the nature of these despatches by the depositions of persons who were
requested to convey them, and by others who saw them opened, and by many
to whom Mr. Smith openly spoke of them. They contained a silk coat and a
note from Blannerhasset requesting him to forward it to Mr. Burr.
Equally unreasonable were the conjectures formed from his having accepted
and paid a draught of Colonel Burr’s. To this circumstance we have
offered every explanation of which it was susceptible. We have proved
by various depositions that it is usual for persons travelling in that
country to deposit their money in safe hands and afterwards draw for
it, and we have clearly shown that this draught must have originated
in that manner from Mr. Smith’s mentioning it at the time. General
Carberry informs us that about the time of Colonel Burr’s departure,
Mr. S. told him that he had left in his care a part of his baggage and
a sum of money. All these circumstances, Mr. S., if guilty, would have
endeavored to conceal; and yet it appears that the first information of
them, and that too immediately on their occurring, is uniformly derived
from himself. Neither can his guilt be inferred from his son’s being the
bearer of a letter to Blannerhasset’s island, even if it were admitted
(of which, however, there is not the least shadow of proof) that he knew
the contents of the letter he carried. Mr. Smith has proved that he was
then, and had been for some time, absent from home, and that he expressed
strong disapprobation of his son’s imprudence upon his return.
Another incident in this string of vague possibilities is his happening
to go to Frankfort at a time when Colonel Burr was there. He has
explained the motives of this journey. Mr. Kelly, Mr. Hart, and several
other gentlemen depose to the business which occasioned it.
His absence from the United States at the time the indictment was found
against him, is, I understand, also relied upon. If this indeed appeared
to have been owing to any desire to avoid an investigation into his
conduct, if he had sought to remain within the Spanish territory, and had
been unwillingly brought forward to answer this charge, it would indeed
have been a circumstance amounting to proof infinitely stronger than
all which this inquiry has produced. But if his conduct was directly the
reverse of this; if he was carried there by important and indispensable
engagements; if, when there, informed of the indictment, he immediately
relinquished his business, and took the most prompt and decided steps to
return and face the prosecution, and did so return, (of all which he has
produced the most conclusive evidence;) then, sir, this circumstance not
only ceases to afford any presumption of guilt, but clearly evinces his
innocence.
Having now, sir, endeavored to show the futility of the testimony
adduced to support this charge, it might be sufficient here to rest
our defence of the honorable member accused. But, sir, though more may
be unnecessary, I rejoice that more is in our power; that we have been
enabled not only to destroy the force of the proof offered to criminate
him, but to exhibit the most complete and direct evidence of his
innocence. I am sensible, sir, that I have trespassed greatly upon the
indulgence of this honorable Senate. I shall not, therefore, take that
view of this part of the case which its importance deserves; but will
only beg leave to suggest a few considerations which appear to my mind
unanswerable, which will render all doubt upon this subject (if indeed a
doubt yet remains) utterly impossible.
In the first place, to what but his innocence can it be attributed that
such numbers of the conspirators knew nothing of his association with
them? We have produced the depositions of several who appear to admit
that they had been induced to participate in this enterprise, and they
declare their ignorance and disbelief that Mr. Smith was in any way
concerned in it. Nay, sir, let us look at the declarations of their
chief, Colonel Burr himself. He has various communications with persons
whom he was desirous to bring over to his views, many of which are
detailed to us in the report of the evidence at Richmond. In these he
makes the most flattering representations of his prospects, endeavors
to show the adequacy of his means, the number and consequence of his
adherents. Among these he never mentions Mr. Smith, though there was no
man, in the whole Western country, the importance of whose co-operation
would have been more obvious. Here is one striking instance of this,
which I beg leave to mention. Lieutenant Jackson deposes that when
Colonel Burr gave him the draught on Mr. Smith, he directed him to call
on General Tupper, to whom he referred him for information relative
to the objects of the enterprise. Now, sir, if Colonel Burr had known
Mr. Smith as one of his associates, why should he have been silent on
this occasion; why should he not have allowed Mr. Jackson to get his
information from Mr. Smith, when he presented his draught, without
proceeding to General Tupper?
All the other conspirators seem equally ignorant of Mr. Smith’s
participation. When Bollman and Swartwout communicated with General
Wilkinson, in the most unreserved manner, they seem to know nothing of
it; they give him no intimation that the army contractor, the very man
who was supplying his troops with provisions, had any connexion with
their schemes.
Let us even descend to Glover and McFarland; that these men were engaged
in this expedition, after the proofs we have produced, cannot be
questioned. And what are they able to say to criminate Mr. Smith?
If they were all living in the same place, associates in the same
conspiracy, is it possible they would not have had frequent interviews?
Would they not have had it in their power to produce some act, or
at least some avowal to others, by which his guilt could be proved,
beyond the possibility of denial? Yet we hear Mr. McFarland frequently
acknowledging and twice even swearing that he knew nothing of Mr. Smith’s
connexion with it; and all that their malignant efforts have enabled
them to collect, is one solitary conversation depending wholly upon the
unsupported assertion of Elias Glover.
Thus, sir, it appears that if Mr. Smith was a party in this conspiracy,
the persons from whom he most studiously concealed it were those who were
associated in the same project. Neither are they more fortunate who were
particularly engaged in watching the progress of this enterprise and
ascertaining who were its partisans. General Gano states that he used
various means to determine whether the reports relative to Mr. Smith
were well founded, and he satisfied himself of his innocence. He also
directed Major Riddle to assist this inquiry; that officer reported to
him that he had frequent conversations with Mr. Smith, and had endeavored
to ascertain whether he knew anything of Burr’s plans, and was convinced
that he did not. Even Colonel Taylor, with whom these suspicions were
strengthened by the conversation relative to a disunion, which he
thought he had heard from Mr. Smith, was yet so far from discovering any
thing to confirm them in his inquiries, that he calls on Mr. Smith to
aid him in procuring information, and frequently declares (as General
Carberry’s deposition informs us) that he did not believe Mr. Smith was
an accomplice.
In the next place, sir, how can Mr. Smith’s guilt be in any manner
reconciled with his conduct in opposing the progress of the expedition.
Major Martin, Dr. Stall, General Gano, Mr. Totten, and numerous other
witnesses, prove that it was principally owing to Mr. Smith’s exertions
that any effectual support was rendered to the measures of Government.
When the President’s proclamation was received at Cincinnati, it seems
there was no means of arming the militia. The orders to the keepers of
the arsenal, to deliver out the public arms, had been neglected, and
he persisted in refusing to deliver them without. At this juncture
Mr. Smith, with that earnestness and decision which so strongly mark
his character, crosses the river at midnight, offers his bond to Major
Martin, in the penalty of $10,000, to indemnify him; procures the arms,
and delivers them to the officers; prepares barracks and supplies for
the militia; furnishes one of his own boats, and in short makes every
arrangement to obstruct the passage of the expected armament.
It may perhaps, sir, be here objected, that these circumstances rather
prove that Mr. Smith then abandoned the enterprise than that he never
participated in it. That the vigilant measures taken by Government
alarmed him, and that therefore, hopeless of its success, he sought by a
zealous opposition to escape detection. However plausible this may seem,
the least reflection will show how unreasonable is this suspicion.
How does it appear that the situation of the conspirators was at this
time more unpromising than at any former period? They had thus far
proceeded without meeting any obstacles; their plans were arranged and
ripe for execution; they were hourly expected to embark. And what was
there so alarming in the measures taken to oppose them as to strike
a panic into Mr. Smith and subvert his resolutions? The militia were
called out it is true, but they were without arms. Their officers
inform us that they could not even station a guard upon the river. I
should rather suppose that this circumstance would have been considered
as more auspicious than any thing he could have expected. Nor does it
appear that this effect was produced in the minds of any of the party.
For even at a subsequent period, and after the militia, by Mr. Smith’s
exertions, had procured arms, we find Captain Nicholls at Cincinnati
still adhering to their views and far from despairing. Nay, even Elias
Glover, (whose courage appears from Dr. Lanier’s deposition to be about
equal to his veracity,) and who doubtless was as ready as any one to
renounce his associates when he saw them sinking, is seen at the same
period persisting in his adherence to them. He tells Captain Nicholls to
hasten his departure lest the guard should stop his boats, declares that
he will shortly follow, and informs him that he had sent off an express
to the party at the island. There is one other circumstance that totally
overthrows this suspicion. If Mr. Smith had thus not only deserted but
opposed his associates, would it not have excited their resentment? And
would they not have revenged themselves for his treachery by disclosing
his participation, and showing that he was equally guilty with themselves?
It cannot be necessary to contrast this conduct with that which we might
expect to find in Mr. Smith, if, most unfortunately for his country
and for himself, he had really been concerned in this enterprise. It
is well known that the circumstance which first excited the suspicion
of Government were the unusual preparations made by Colonel Burr and
his party on the Western waters. From these suspicions they would have
been perfectly secure by obtaining the co-operation of Mr. Smith. His
contracts for the supply of the army, and his engagements to prepare
boats for the navy, would have enabled him to collect any quantity of
provisions and materials, and place them in suitable situations without
exciting the least attention: and whenever they were ready to act, he
might in a moment have stopped the supplies of your armies, and suddenly
directed all his resources to aid in the most effectual and fatal manner
the objects of the combination.
Thus, sir, in short, it appears that Mr. Smith has not merely forborne
from the commission of these acts, which if guilty it is almost certain
we should have discovered in him, but has pursued a most decided and
distinguished course of conduct, utterly unaccountable upon any other
presumption than that of his innocence.
I will now, sir, conclude by adding to these considerations those which
naturally result from the view which the testimony affords us, of Mr.
Smith’s character and situation in life, and the various honorable and
lucrative employments committed to his trust. These alone, if properly
considered, will be found more than sufficient to outweigh all the
circumstances adduced against him. I will not undertake to point out the
objects of Colonel Burr and his partisans, but am very willing to admit
the correctness of the information collected by the honorable committee
on this subject, and so eloquently detailed in their report. They are
there represented as having been only prevented by the “vigilance of
Government and of faithful citizens under its direction from a speedy
termination not only in war, but in war of the most horrible description,
in war at once foreign and domestic;” that “the debauchment of our army,
the plunder and devastation of our own and foreign territories, the
dissolution of our national Union, and the root of interminable civil
war, were but the means of individual aggrandizement, the steps to
projected usurpation.”
Now, sir, is Mr. Smith the sort of man to whom conspirators, who were in
their senses, would have proposed such a scheme as this? Would he have
been solicited to join in the dismemberment of the Union, whose interest
was so materially connected with its continuance, the profits of whose
employment wholly depended upon it? Would he have been asked to join in
“a war of the most horrible description,” who is represented as enjoying
every domestic comfort in the bosom of a happy and numerous family? Would
he be called upon to unite in a scheme of plunder and devastation, who
had every reason to be satisfied with his present possessions, who had so
much to risk and so little to gain from civil commotion? Would he have
been called upon to make all these sacrifices to the madness of ambition
who was already distinguished even beyond his wishes?
Surely, sir, this is the first time that robbers ever made offers of
partnership to the man whom they were about to plunder--that incendiaries
ever called upon him for assistance whose house was to be destroyed by
their flames.
No man in the whole Western country would have been more certainly ruined
by the success of this project than Mr. Smith. There is therefore no man
from whom it would have been more studiously concealed. To a disposition
of this sort I think it not at all improbable is to be in some degree
attributed the circumstance of Colonel Burr’s stopping at his house. As
Mr. Smith’s guest he would have it in his power to say just as much as he
pleased of his plans, and no more. In such a situation he would be less
liable to the importunity of inquiries.
Let us, sir, for a moment fancy ourselves present at a consultation upon
this subject between Colonel Burr and his confederates at Cincinnati; and
let us suppose that that gentleman had so far lost his usual discernment,
had felt such confidence in his personal influence as to presume that
he could seduce Mr. Smith from his interest as well as from his duty.
After inquiring about Major Kibby, (whom it seems he was anxious to
see, and who is represented to be in distressed circumstances,) let us
suppose that he mentions Mr. Smith. What would his associates, Glover
and McFarland, say to this? Would they not fear, that as Mr. Smith was
their enemy, he would be tempted to inform against them? Would they not
also know that if Mr. Smith assented to the proposal he would hold his
rank in the expedition much above them, and would have it in his power
materially to affect their interests? Would they not at least have
thought it highly dangerous to trust such a secret to a man so connected
with the Government they were about to oppose? These considerations would
instantly have dictated a most decided reply. They would have said “you
can have no hopes of Mr. Smith, his interests are too obviously opposed
to our designs; he is too well satisfied with his present situation
to consent to the change we contemplate; he is too highly trusted and
favored by the Administration. He is,” they would add, (repeating
an expression used by Glover on a former occasion,) “‘a damned army
contractor and gunboat builder;’ he makes too much by the present system
of things to be trusted with a scheme for overturning it. No, sir, from
him our plans must be concealed; he is easily deceived; tell him a
plausible story about your settlement of lands, show him your Washita
grants; tell him his sons are fine, promising young men, and offer to
take them under your patronage.” The force of these observations it would
have been impossible to evade.
And, sir, whatever Colonel Burr’s designs may have been, to whom does it
appear that he actually did communicate them? To what kind of men does
he apply to procure partisans? Why, sir, like a celebrated character
of antiquity, to whom he was long ago compared, it is always the
discontented, the embarrassed, the turbulent, the idle, the ambitious
and the enterprising. Nor does it appear that even to all these he fully
explained himself. He had a variety of schemes suited to every taste, to
every possible occasion. But among this mixed assemblage of characters,
collected by these means, there is not one to be found who had not some
strong and ruling passion to which he could successfully apply himself.
Thus to the romantic enthusiasm of Dr. Bollman, he would expatiate on
the glorious and benevolent attempt to liberate, enlighten, and exalt a
nation of slaves. To the youthful heroism of Swartwout he would paint, in
all their fascination,
“The plumed troop and the big wars,
That make ambition virtue!”
And turning from these he would address himself to such creatures as
Glover and McFarland, and to them he would talk of plunder. But, sir,
what motive could he expect to find in the breast of Mr. Smith that
would prompt him to listen to a project that assumed any aspect of
disunion, that discovered the least mark of treason, that bore even the
most distant indications of “war and devastation?” What air-built castle
could he picture to him to tempt him to overturn the fair and substantial
fabric of his honors, the solid foundation of his happiness?
WEDNESDAY, April 6.
The PRESIDENT communicated a report of the Secretary of the Treasury,
respecting roads and canals, prepared in obedience to the resolution of
the Senate, of the 2d of March, 1807; which was read.
_Case of John Smith._
The Senate resumed the consideration of the first report of the committee
appointed to inquire into the conduct of John Smith, a Senator from the
State of Ohio, as an alleged associate of Aaron Burr.
Mr. SMITH attended, together with Messrs. ROBERT GOODLOE HARPER and
FRANCIS S. KEY, counsel on his behalf.
Messrs. RUSSELL and GARDENIER, Representatives from New York, were
examined as to the credibility of several of the deponents on the part of
Mr. Smith.
Mr. HARPER then rose and addressed the Senate, first, in a legal argument
sustaining the views of his associate counsel; and then proceeded:
If, therefore, Mr. President, we had no defence, or only a weak one, on
the facts in the case, I should insist that this prosecution, being for
an offence cognizable by indictment, and resting on evidence which the
law excludes, ought to be dismissed. Standing, however, as my client
does, strong on the facts; holding in my hand abundant proof of his
innocence, I shall by no means rest his defence on this legal ground,
impregnable as I deem it; but having entered in his name, and in my own,
as one of the American people, this protest against a proceeding which I
regard as a violation of our constitutional privileges, I now proceed to
investigate the evidence adduced in support of the charges against Mr.
Smith, and to contrast it with that whereby his innocence is completely
established.
I am to premise that the charge against Mr. Smith is, that he was
connected with Colonel Burr in the late conspiracy. This connection is
alleged as the sole ground of expulsion; and it is attempted to be proved
in various ways.
1. By the conversation stated by Elias Glover and McFarland.
2. By the facts stated by Peter Taylor.
3. By the conversation stated by Major Riddle.
4. By the conversation stated by Colonel James Taylor.
5. By Mr. Smith’s journey to Frankfort, in 1806.
6. By the bill drawn by Colonel Burr, on Mr. Smith, in favor of Jacob
Jackson.
7. By that drawn on him by Colonel Burr, in favor of Belknap.
8. By a supposed contradiction between Mr. Smith’s statement respecting
the settlement of the Washita lands, in his deposition before Matthew
Nimmo, and the facts which appeared in evidence at Richmond. And
9. By a supposed similarity between the style of the conversation stated
in Glover’s deposition and that of Mr. Smith’s own deposition before
Nimmo.
By some of those proofs and circumstances, or by all of them taken
together, it is contended that a criminal connection between Smith and
Burr in the late conspiracy is established; and it is therefore incumbent
on me to consider them all; which I shall proceed to do in the order in
which they have been stated, and with as much brevity as the extent and
variety of the matter will admit.
As to the conversation stated by Elias Glover, I admit that, if it did
take place, it furnishes sufficient proof of a criminal participation
by Mr. Smith, in the enterprise of Colonel Burr, and sufficient ground
for a vote of expulsion. We are, therefore, to show that Glover’s
deposition, even when bolstered up by the furtive skulking affidavit of
his confederate, McFarland, is entitled to no credit. This we undertake,
and unless we do it in a satisfactory manner, I admit that we fail in our
defence.
And, first, we rely upon his bad character generally. To prove it, we
trace him from Newtown, in Connecticut, the place of his birth and
education, to Brookfield, and from thence to Delaware County, in the
State of New York. Five witnesses at the first of those places, seven
at the second, and twenty-one at the last, many of them proved to be
men of note and character where they live, and none of them proved or
even stated to be otherwise, have deposed that Elias Glover is a man of
general bad character. Several of them add, that he is not entitled to
belief on his oath. Now, let me ask, against what man of good character
could so many of his neighbors and acquaintances be brought to give such
testimony? The fact alone that so many men, who knew him in the places
where he has resided, consider him as a man of bad character, affords
plenary proof that he is so. These witnesses do not depose to particular
facts, but they speak of his general reputation, which they state to be
a bad one. This testimony is by no means rebutted by the depositions
produced on behalf of Glover. The deponents state that they never heard
any thing against his character. This may be true, and yet his character
a very bad one. But, take these depositions in their most liberal
construction, and what does the whole testimony amount to? Certainly to
this, that one-half of his neighbors consider him as a knave, and the
other half admit that, for any thing which they know, or have heard,
he may be an honest man. Surely, this is too equivocal a reputation to
entitle the ex parte deposition of its possessor to belief in a case of
this nature.
It must further be remarked, Mr. President, that the bad opinion which
these numerous witnesses express of Elias Glover’s reputation, does not
and cannot proceed from party feelings or political animosity; for the
principal witnesses, and those who have spoken in the strongest terms,
are proved to be of that political party to which Glover has taken
so much pains to prove that he belongs. They, as well as Glover and
McFarland, are proved to be most excellent republicans; and they have the
advantage of being proved also to be men of good character.
If we pursue Elias Glover in his next and last emigration to Cincinnati,
in the State of Ohio, we shall find that the bad character which he
acquired in early life, attends him still in his riper years. Col. James
Taylor, who was examined at the bar of the Senate, stated that there were
two parties in Cincinnati, “one of whom spoke well of Elias Glover, and
the other very unfavorably.” These two parties are not the two political
parties which divide our country. On the contrary, they both appear, with
the exception of some very few individuals, to be composed of exceedingly
good democratic republicans. What, then, were these two parties? One, I
answer, was composed of that portion of the citizens of Cincinnati, who
espoused the interests of Mr. Smith; and the other consisted of those
who had united themselves with his persecutor, Glover. The first speak
“very unfavorably” of Glover; and the last, as might be expected from his
associates and coadjutors, speak well of him.
And who, let me ask, belong to the party which speaks very ill of this
man? It must be answered, General Gano, General Carberry, Mr. Burnett,
Mr. Stone, Dr. Sellman, and a number of others, who have been proved to
be men of the first respectability in that part of the country. Has any
such favorable account been given of those who speak well of him? Far
from it. We know but little of them, and that little is very little to
their honor. Some of them, when called on by Mr. Smith to give evidence
in this case, refused to be examined. Some of them are proved to have
been connected with Glover, in the enterprise of Colonel Burr. And
McFarland, the chief of the party, was extremely active and zealous in
obtaining recruits for that enterprise. When he and Glover found that the
enterprise had failed, they took refuge, as is customary, in outrageous
patriotism; became the zealous hunters-up and denouncers of treason;
and, to use the language of Dr. Goforth in his deposition, attempted to
lay the body of John Smith as a pedestal whereon to rebuild their own
fallen reputations. Such men as these, no doubt, speak well of Glover. Be
it so. But, while General Gano, Doctor Sellman, Mr. Burnett, and almost
every other respectable man in the place, speak very ill of him, I shall
take the liberty of contending that “_cœlum non animum mutavit_;” that
he has not changed his manners with his residence; and that he still
merits and enjoys at Cincinnati that opprobrious distinction to which the
achievements of his early life gave him a title.
But, Mr. President, it is not on the general bad character of this man,
however clearly established, that we solely rely, for destroying his
credibility. I shall next proceed to show, that he has been guilty of
wilful and deliberate false swearing in no less than three instances.
Being interrogated before the grand jury at Chilicothe, whether he had
ever written and offered for publication, a piece ridiculing the measures
adopted by the Government for suppressing Colonel Burr’s enterprise?
he answered on his oath that he had not. He was, perhaps, not bound to
answer, but he did answer, and answered in the negative. This is stated
in the deposition of Ethan Stone, who was a member of the grand jury, and
has been proved at your bar to be a man of very respectable character.
And yet, two printers, Samuel L. Browne and D. L. Carney, connected with
Glover in politics, expressly swear that he did bring such a piece to
them for publication, and that they refused to admit it, because of its
tendency to bring those measures of the Government into derision and
contempt.
Again: on being further interrogated by the grand jurors, he admitted
that he did write such a piece, but that it was intended to ridicule the
conduct of the officers who had been appointed to carry the measures of
Government into execution, and not the measures themselves. Yet, Mr.
Burnett swears that Glover confessed to him that he had written the
piece for the express purpose of turning the measures of Government into
ridicule, and offered it to him for perusal.
Here could be no mistake. Either Glover or the other witnesses have
sworn to a falsehood. When their characters are contrasted with his,
there can be no hesitation where to fix it.
He also swore, before the grand jury, that he had never corresponded
with Col. Burr. This question, also, he was not bound to answer; but, to
prevent suspicion, he did answer it in the negative--so says Gen. Gano;
and yet George Russell, a man admitted to be respectable and intelligent,
swears that, in the fall of 1806, Glover gave him a letter, to be
delivered to Col. Burr, with directions to burn it if he did not see
Burr. This proves that he did correspond with Colonel Burr, because the
letter was too important to be delivered by Russell to any but Col. Burr
himself.
And this testimony is supported by that of Captain Nicholls, who
states, in his deposition, that when he was descending the Ohio, in
the command of one of Colonel Burr’s boats, Glover came on board of
the boat, and advised him how to proceed with it, so as to elude the
officers of Government; and yet this is the man who accuses John Smith of
participating in the views of Col. Burr! This is the jealous patriot who
swears that he communicated with Colonel Burr for no other purpose, but
to discover his views and pervert them!
But, the general bad character of Glover, and the deliberate falsehoods,
on oath, of which he has been proved guilty, are not all that we have
to oppose to his testimony against our client. That testimony has been
positively contradicted by his friend and confederate, McFarland. Glover
introduces his account of Mr. Smith’s conversation with him, about Col.
Burr’s plans and views, by stating that it took place in the presence
of a friend, who accompanied him to Smith’s house. It is fully proved
that McFarland was his friend. McFarland, therefore, must have heard the
conversation, if it ever took place, and he must have remembered it too,
for it is impossible to believe that a conversation so interesting, so
remarkable, from such a man as Mr. Smith, and on a subject which then so
greatly agitated men’s minds, could pass, in the presence of any man,
without taking strong hold on his attention, and sinking deep into his
memory.
Let us, then, hear McFarland on the subject of this remarkable
conversation, in which Mr. John Smith developed the treasonable character
of Col. Burr’s enterprise, and confessed his own participation.
We first find him conversing with Gen. Gano, to whom, long after this
conversation between him, Smith, and Glover, is stated to have taken
place, he declared that he was wholly ignorant of Burr’s plans, which
could not have been the case had he heard such a conversation as Glover
relates. He also stated to Gen. Gano, at the same time, that Glover’s
statement on this subject was incorrect; and he told another witness,
Mr. Longworth, that he knew nothing of Col. Burr’s plans, or against Mr.
Smith; which he could not have said with truth, had such a conversation
as Glover relates, taken place in his presence.
But all this it may, perhaps, be said, is mere conversation; and a man,
when not on oath, may easily be supposed to deny a fact, when it tends to
implicate himself in guilt.
Let us, then, hear McFarland on oath. When examined at Richmond, on the
trial of Col. Burr, though sworn to tell the whole truth, he says not
one word of this most remarkable and important conversation. And lately,
before the grand jury at Chilicothe, when interrogated as to this very
point, he declared that he knew nothing of the matter--that he had some
faint recollection of a conversation between Mr. Smith and Mr. Glover, on
the subject of Colonel Burr’s enterprise, but could recall to his mind
none of the particulars. This fact, and also the admission of Glover and
McFarland, that McFarland was the friend stated by Glover to have been
present at this conversation, are proved by Ethan Stone, General Gano,
and John Armstrong, three members of the grand jury, in their joint
deposition of February 20, 1808.
Now, Mr. President, let me ask whether any man can believe that such a
conversation took place, in the presence and hearing of Mr. McFarland;
that such confessions and disclosures on this most interesting subject
were made by Mr. Smith; and that McFarland had lost all recollection of
them, when examined before the grand jury, in January last? I answer,
that it is impossible; and that McFarland’s testimony, therefore, amounts
to a flat contradiction of Glover’s on this point.
And let it be remembered, that when Mr. Smith, under the order of the
Senate to take testimony for his defence, summoned this same McFarland to
give evidence on these points, and put questions to him for the purpose
of obtaining a full explanation, he positively refused to answer. I hold
in my hand the summons, the proof of its service, the questions of Mr.
Smith, and the magistrate’s certificate of McFarland’s refusal. This
wretch, who now appears among the accusers of John Smith, when called
upon to meet his intended victim face to face, and undergo the scrutiny
of a public examination, shrunk like a villain and a coward from the
investigation. Eager to destroy Mr. Smith, but not yet prepared to meet
the terrors of direct perjury, his mind maintained a short and faint
struggle between the desire of gratifying his malice and some remaining
sense of shame; but it was short and faint, indeed. For, within a few
days, his malice triumphed, and he made an _ex parte_, clandestine
deposition, not only without notice to Mr. Smith, but carefully concealed
from his knowledge, in which, in the teeth of all his former declarations
and oaths, he declares that Glover’s statement is correct. And this
deposition, conceived in malice and brought forth in perjury, is sent
forward to this bar, to bolster up the accusation against our honorable
client! What words can describe the mingled emotions of indignation
and disgust which such hardened profligacy (fortunately but seldom
exemplified) must excite in every virtuous mind!
I here dismiss McFarland, but I have not yet done with his confederate,
Glover, whose testimony against my client is further contradicted by
Matthew Nimmo, another of the actors in this black tragedy.
I hold in my hand an extract from Nimmo’s communication to the President,
bearing date the 28th November, 1806. This extract, which was furnished
by Nimmo, and is proved to be in his handwriting, contains some
information relative to Mr. Smith’s connection with Colonel Burr; which,
as it states, “was communicated by Colonel Burr, in a confidential
manner, to the person from whom Nimmo received them.” The person from
whom Nimmo received these communications was no other than Elias Glover.
This is manifest from Glover’s deposition, made not long afterwards, on
the 2d February, 1807, before this same Matthew Nimmo. Now, it will be
found, on a comparison, that Nimmo’s statement to the President, founded
on Glover’s communication, contradicts Glover’s deposition in two or
three essential points. In the communication to Nimmo, he alleges that
he received his information, in a confidential manner, from Colonel
Burr himself. In his deposition, he swears that he derived it from
the conversation of Smith, held in the presence of McFarland. In the
statement to Nimmo, he says that Mr. Smith had lately sent down the river
considerable shipments for the use of Col. Burr; but in his deposition
this most important fact is omitted. In the statement to Nimmo, it is
said that “next week two of his (Smith’s) sons descend the Ohio to join
Burr’s troops, and Mr. Smith follows shortly after.” In the deposition,
Mr. Smith is made to “express his regret that his engagements were such
that he could not go immediately himself, which he would do, if the
situation of his affairs would permit.”
Strong as these contradictions are, we have still stronger behind. We
have seen Glover’s deposition contradicted by McFarland and Nimmo,
two of his friends and confederates. We now introduce Glover himself
contradicting his own deposition.
Let it be kept in mind, that the conversation stated in Glover’s
deposition took place in September, 1805. He swears that, in that
conversation, Mr. Smith opened the criminal views of Burr, and his own
participation. Now, hear what he said in February following on this
subject to Mr. Longworth, one of those respectable witnesses whose
testimony we have adduced.
Mr. Longworth, in a deposition made in the presence of Glover,
who attended and cross-examined, after stating the substance of a
conversation between Glover and himself, relative to Mr. Smith, in
February, 1807, proceeds thus: “And, to the best of his (this deponent’s)
recollection, he (the said Glover) then declared, in express terms, that
he believed Mr. Smith unjustly accused, and that he was not concerned
with Burr in his expedition.” Contrast this with the deposition of
this same Glover, made February 2, 1807, a little while before the
conversation with Longworth, for the purpose of criminating Smith, as an
associate of Burr.
And James M. Lanier, another of the witnesses, tells us, in his
deposition, that in April, 1807, Glover, when charged by Smith with
having given information against him, at first denied the fact, and
afterwards, when more closely pressed, confessed that he had given
information, but declared that it was nothing of any moment, or capable
of operating to the disadvantage of Smith, towards whom he expressed a
friendly disposition. And yet, he had then made the deposition which is
now relied on for producing the disgrace and ruin of Mr. Smith! Can it be
possible that a tribunal composed of men with honorable feelings, will
listen for a moment to the testimony of a wretch who thus fabricates in
the dark an instrument of destruction, smooths his face to the smile of
friendship while he is preparing the mortal stab, and solemnly denies his
hellish machinations in order to lull his victim into a fatal security?
The falsehood of this accusation, independently of the direct proof of it
which we offer, is rendered in the highest degree probable by the extreme
enmity which Glover is proved to have borne towards Smith, and the active
endeavors which he had used to injure him. General Gano informs us in his
first deposition, that, as early as July 4th, 1806, Glover had abused
Smith most virulently in a public oration. Francis Dunlavy states in his
deposition, that, in August, 1806, Glover displayed “very great animosity
against Mr. Smith.” And Colonel Taylor, in his testimony at this bar,
informed us that Glover was “extremely active” in the measures attempted
for the injury of Mr. Smith by a party in Cincinnati, in the autumn of
1806. Doctor Sellman, Stephen McFarland, George Jordan, and John H.
Stall, furnish us in their depositions with a detail of those measures in
which Glover was extremely active. Let us hear what they were.
A meeting of the citizens of Cincinnati was called for some public
purpose, and was very numerously attended. Some resolutions were
passed by a very large majority. There is a small, but noisy party in
Cincinnati, calling itself “The Republican Society.” Some of its members
attended, and offered resolutions tending to criminate or vilify John
Smith. They were indignantly rejected by a large majority. These zealous
republicans, finding themselves out-voted, and being determined, as is
usual, not to submit to the majority, when against them, resolved to make
sure of their mark by calling clandestinely another meeting, to which
none but such as were selected by them for the purpose, and furnished
with tickets, should be admitted. The meeting was accordingly held
the next evening in the upper room of a tavern, and an attempt appears
to have been made, to pass the resolutions which the full meeting had
rejected, and which would, no doubt, have been then palmed upon the
public as the sense of the “people of Cincinnati”--for republicans love
to speak in the name of the people. But the people, in this instance,
chose to speak for themselves. They burst open the doors of the conclave,
and defeated the scheme. But the most zealous of the patriots were not to
be so repulsed. A few of them, and among the rest, the President, and Mr.
Secretary Glover, made their escape, met in private, and actually passed
their resolutions, which they forthwith published; taking care, at the
same time, to suppress the resolutions which had been adopted at the full
and public meeting, and of which Glover, as secretary of the meeting, had
possessed himself.
Is it difficult to believe--indeed, is it not highly probable, that a man
of Glover’s principles and character, who has gone such lengths as these,
to injure a person against whom he had conceived a resentment, would stop
at a false oath, if likely to effect his purpose? And ought not testimony
given under such circumstances, to be viewed with the utmost distrust?
Furthermore, can any thing be more improbable than that Smith should
make such a communication to Glover--to Glover his enemy, his public
traducer--who, in July, had abused him in a public speech; and in
August, had displayed very great animosity against him? What motives
for such a choice of a confidant, in an affair on which his character,
his fortune, and even his life, might depend? How does it happen, that
a man of John Smith’s understanding and prudence, passed over the long
list of his respectable and tried friends at Cincinnati, and fixed upon
Elias Glover, to whom alone to confide the most important secret of his
life? A man with whom he had long been on very ill terms; of whom, as
Mr. Isaac Burnett informs us in his deposition, he had long been in the
habit of thinking and speaking very ill, and whom, according to the same
gentleman, he was much surprised at seeing in his house! All this, it
must be allowed, is passing strange; and it will certainly require more
than the oath of Elias Glover to make us believe it.
Again: Why make this grave discourse to Glover, concerning Burr’s
plan? Was it to enlist volunteers? No! for Smith never appears to have
mentioned the subject to any other person; and if he was in Burr’s
secrets, he knew that Glover and McFarland were already enlisted. That
they were engaged, is proved beyond the least doubt. The evidence on this
point is full and unquestionable. They were not only engaged, but very
actively and zealously engaged. This, Smith, if he was also engaged, must
have known. Why, then, make a grave and mysterious disclosure to two of
his confederates, of the plans in which they were mutually embarked?
Can any thing be more ridiculous than the idea of a conspirator making
a formal disclosure of the conspiracy to two of his associates? This
single consideration would be sufficient to prove that the story of this
disclosure was invented by Glover, as a screen for his own guilt.
But how does it happen that Smith, in looking round for a confidant, did
not think of his friend Kelly, his confidential agent, and the usual
depository of all his plans and thoughts? Kelly, to whose character men
of the first rank in Kentucky, and amongst them Henry Clay, lately a
member of this House, have borne the most honorable testimony, tells us
in his deposition, that the highest degree of intimacy and friendship
subsisted between him and Smith, who wished to advance his fortune, and
was very desirous of assisting him. Yet Smith communicated to him nothing
of Burr’s plan. Desirous as Smith felt of promoting Kelly’s fortune,
and well acquainted as he was with the benefits of a contractorship, he
would hardly have failed to hold out to his friend the brilliant post of
contractor-general, or paymaster to Burr’s army; which, especially when
the treasures of Mexico should once be occupied, would have been so well
adapted to Kelly’s talents, and so fully adequate to all his desires.
Smith, however, does nothing of all this; and he not only avoids all
mention of these momentous and magnificent schemes to Kelly, but observes
an equal silence to his friends, Gano, Longworth, Findley, and Sellman,
while he singles out his persecutor and calumniator, Glover, as the
chosen depository of this great secret, and very gravely communicates it
to him and McFarland, with a full knowledge that they were, already, at
least as well apprised of it as himself.
Mr. President, this tale refutes itself. It is impossible for any man of
common sense to believe it. But, independently of external refutation,
the communication stated by Glover to have been made by Smith, carries
internal evidence of its falsehood, by the contradictions and absurdities
wherewith it abounds. Can any one believe that a man of John Smith’s
intelligence and knowledge told the ridiculous story about the frigate
which Mr. Somebody was building, or had completed, in the Southern
States, to be employed in this expedition? What! An individual in this
country build a frigate, to which so few fortunes are adequate? Mr.
Alston, who is probably the person meant, though rich, is well known not
to have the means of building a frigate, even were he disposed to expend
his whole fortune in such an enterprise. And this frigate, moreover,
was to be built in secret. Nobody was to see it; for otherwise, the
building of it by an individual, so strange a thing, would have been
a matter of notoriety, with which the newspapers would have rung, and
which it would have been wholly unnecessary for Smith to communicate to
Glover and McFarland, and ridiculous in the last degree to communicate
confidentially. A frigate built by an individual, and built in secret!
Can any one believe that John Smith, a Senator, and a man of information,
could tell so absurd a tale? Sir, a frigate cannot be built in a
dry-dock, although it may be kept there. It must be built openly. It
must be seen. Its commencement, and its progress, would be as well known
on the Ohio, long before it could be completed, as on the Potomac. And
to represent John Smith, a Senator, and a man of sense, gravely telling
such a tale to Glover, a lawyer, and McFarland, a judge, both men of some
information, accustomed to read the newspapers, and therefore knowing the
falsehood of the tale, is an absurdity so gross, that one is wholly at a
loss to conceive how Glover, who, depraved as he is, by no means appears
destitute of understanding, came to admit it into his fabrication. We
can account for it only by a reference to the kindness of an overruling
Providence, which, for the protection of innocence, sometimes impels
guilt to mar its own schemes, by a strange intermixture of folly with its
wickedness.
This deposition presents another instance of the same kind, though not
equally glaring. Glover swears that this communication was made to him
by Smith, under the strictest injunctions of secrecy. And yet he had
stated, in the beginning of the deposition, that the communication was
made in the presence of a friend, who proves to be William McFarland.
This is another instance in proof of the old adage, that “liars ought to
have good memories.” Before Glover came to the end of his deposition,
he forgot what he had said in the beginning, and thus fell into another
of those providential contradictions by which the falsehood of made-up
stories is often detected.
Reviewing, then, Mr. President, all these considerations--the bad
general character of Glover, at all the places where he had lived; the
repeated instances of wilful false swearing which had been fixed upon
him; the contradiction of this story by his friends and confederates,
McFarland and Nimmo, as well as by himself; his enmity to Smith, and
Smith’s ill opinion of him; Smith’s silence on this subject to all his
usual confidants and intimate friends; and the inherent contradictions
and absurdities of the story itself, I think myself warranted in saying,
that the credibility of Glover is completely overthrown, and that his
testimony must be laid out of the case.
I come next to that of Peter Taylor, and here I feel myself greatly
relieved, in being able to absolve him from the guilt of wilful false
swearing. His character is said to be fair, and, for aught we know, is
so. We are far from a wish to impeach it. But we shall show that in some
of the minute circumstances which he relates, and which are adduced as
grounds of suspicion against Mr. Smith, he probably mistakes, and that
the others are satisfactorily explained.
In ascertaining what degree of credit is due to an honest witness,
especially in relating, after a considerable lapse of time, minute facts,
which derive their complexion from circumstances apparently trivial,
it is proper, in the first place, to consider his education and habits
of life, and to inquire how far they have a tendency to produce that
accuracy and precision of conception and language, whereon the weight of
such testimony almost wholly depends. Apply this rule to Peter Taylor.
Admit him to be perfectly honest in his intentions. But we find him to
be an illiterate laborer, sometimes employed as a menial servant. Such
a man is likely enough to have a distinct perception, and an accurate
recollection, of such facts as he is accustomed to observe. But when he
speaks of things out of the usual track of his business, his thoughts,
and his observation; when he attempts, at such a distance of time, to
relate very minute facts, in which he could not have taken any interest
at the time; I ask, if we can implicitly rely on the clearness of his
comprehension, or the exactness of his memory? Is it not highly probable
that he may have misconceived at the time, or forgotten since, some of
those circumstances, apparently minute, on which the character of the
whole transaction frequently depends?
But if, in addition to this general reasoning, it should appear that
the witness has, in relating other parts of this transaction, committed
several mistakes, will it not be admitted that his recollection is
too confused or imperfect to command our confidence or influence our
decisions? This is the case with Peter Taylor. In his testimony, taken at
Richmond, from which the part now used against Mr. Smith is extracted,
he relates that, in October, 1806, Blannerhasset, on their return from
Kentucky, pressed him to join Colonel Burr’s expedition, and that he
consented to go, provided he might take his wife and family; to which
Blannerhasset did not consent. On his cross-examination, he states that
his wife died in the September preceding. He also relates, in his direct
testimony, that when the party left Blannerhasset’s island he saw Dudley
Woodbridge on the bank. And it is proved by Woodbridge himself, and by
Morris B. Belknap, that Woodbridge was at that time in bed, and was not
on the bank at any time during that night. These are small mistakes, but
they prove that Taylor’s recollection of minute circumstances, such as
those which he details concerning Mr. Smith, cannot be relied on.
The first of these circumstances is, that Mr. Smith, on being informed
that he was a servant of Blannerhasset, asked him to go up stairs. This,
at first view, might have a suspicious appearance, as if Mr. Smith wished
to make or receive some communications which required privacy. But when
we learn that Mr. Smith had his office up stairs, where he usually wrote,
and that he wished to write a letter by Taylor, the mystery vanishes, and
the circumstance stands fully explained.
But he wrote a letter to Colonel Burr. No doubt, Mr. President, a letter
from Mr. Smith to Colonel Burr, at that time, has in itself a suspicious
appearance. But we are made acquainted with the contents of the letter,
and the suspicion disappears. Instead of being a criminal correspondence
concerning an enterprise in which they were mutually engaged, it is a
letter informing Colonel Burr of the suspicions afloat concerning his
plans and movements, and requesting an explanation, for Smith’s own
satisfaction. Nothing could be more natural than such a step, on the part
of Mr. Smith. Colonel Burr had long been his acquaintance and friend,
and recently his guest. He could not, therefore, be indifferent, either
on Colonel Burr’s account or his own, to the reports in circulation.
These reports were founded on mysterious circumstances, which Mr. Smith
supposed could be satisfactorily explained, and he wrote to obtain this
explanation. No conduct could be more rational or more commendable. It
was kind and candid towards his friend, and cautious towards himself.
The answer which he obtained was well calculated to quiet his alarms.
His original letter is not in our power, but we have produced a copy of
it. The answer, however, in the handwriting of Colonel Burr, is now in
my hand. This letter is no after-thought; no subsequent contrivance for
exhibition; for Mr. Broadwell has proved that he saw it delivered to Mr.
Smith from the post-office. Let it be attentively read; let the situation
of Colonel Burr and of Mr. Smith at that time be considered; and then
let gentlemen candidly declare, whether they think that Mr. Smith, after
receiving that letter, could regard Colonel Burr in any other light
than that of an honorable man, indignantly repelling unfounded and
injurious suspicions? [Here Mr. HARPER produced the original letter, the
handwriting and authenticity of which were recognized by several of the
Senators.]
But Mr. Smith inquired anxiously about the news, in the part of the
country from which Peter Taylor had come. And what more natural, what
more usual, than to inquire the news, especially in a time of alarm and
apprehension? The operations of Colonel Burr were the subject of general
conversation, and had excited no small alarm. The plot, whatever it
was, appeared to thicken about Blannerhasset’s island. Of course every
one felt anxious to know what was going on at that place, and in its
neighborhood. This circumstance, then, is of no moment; and the letter,
the only ground of suspicion, being fully explained, every thing is
explained, except the last fact stated by Taylor, on which I will now
bestow some attention.
Taylor states that Mr. Smith offered him something to drink, and
“charged him not to go to any tavern, lest the people should be sifting
him with their questions.” Sift him about what? Did Smith then suppose
that Blannerhasset’s gardener and servant was possessed of the secrets
of the conspiracy, which might be sifted out of him? Is it credible
that so gross and absurd an idea could be entertained by a man of his
understanding? Had he used precautions to prevent Blannerhasset himself
from being sifted, there would have been some sense in it: but to suppose
him afraid of the gardener’s being sifted about things, which if he knew
them himself he must have been satisfied that the gardener could not
know, is to impute to him more folly than those who charge him with a
principal participation in Colonel Burr’s designs, would be willing to
admit.
Will it be said that Smith was afraid of the gardener’s being sifted
about the public occurrences in the island and its neighborhood, which a
person in his situation might be supposed to know? I answer, why should
he be so afraid? As those circumstances were notorious, the gardener
could do no harm by telling them; and they would speedily be known at
Cincinnati, whether he told them or not.
It is therefore impossible to suppose that Smith’s wish to keep Peter
Taylor away from the taverns, if he really had such a wish, proceeded
from any fear of disclosures which Taylor might make. It is much more
probable that Taylor, whose recollection we have already found to be very
imperfect, or to whom these little circumstances could not then have
appeared to be of any importance, has fallen into a mistake in relating
them, than that John Smith did so foolish a thing. He might, indeed,
caution Taylor not to go to a tavern, for fear that he should get engaged
in drinking, and delay his time--a thing which he knew was very likely to
happen to a man in Taylor’s situation; and it is possible, that in order
to keep him away, he endeavored to alarm him about something that might
happen to him at the tavern. This matter, floating confusedly in Taylor’s
brain, has at last assumed the form of this story about sifting, which
has found its way into his testimony, and is now adduced to fix a charge
of treason on John Smith.
And it is not a little surprising, if we are implicitly to believe Peter
Taylor, that Mr. Smith, after having taken so much pains to keep him away
from the taverns, for fear of his being sifted, should immediately have
sent him to one to get his horse fed; thus exposing him, for the value of
a gallon of oats, to the very danger from which he had just appeared so
anxious to guard him. “He then showed me,” says Taylor, “a tavern, and
told me to go to get my horse fed by the hostler, but not to go into the
house.” Does not this prove that if Smith wished to keep Taylor out of
the taverns, it was to preserve him from the temptation to get drunk and
lose his time, and not to keep him out of the way of questions? Had the
latter been his object, would he have sent this man to a tavern at all?
Would he not have had the horse fed in his own stable, or sent him to the
tavern by his own servant?
I here dismiss the story of Peter Taylor, Mr. President, presuming to
believe that the only fact of any moment, the letter, is satisfactorily
cleared up by the letter itself and Colonel Burr’s answer; and that
the other slight and trivial circumstances of suspicion are fully
explained, or resolved into the confusedness and inaccuracy of
Taylor’s recollection. Certainly facts so doubtful in themselves, so
inconsiderable, so capable of being misunderstood by the witness, ought
not to have any weight in such a case as this.
The testimony of Major John Riddle comes next to be considered; in which
he states that Mr. Smith told him that he knew more of Colonel Burr’s
plans than any other person in the State of Ohio, except one. Smith no
doubt did, at that time, suppose that he knew a great deal about Burr’s
plans, for he had then received the letter in which Burr affects to
explain them. It is not therefore surprising that he should make this
remark to Major Riddle; but as Major Riddle was, at the time of this
communication, the commander of a body of militia, stationed on the Ohio
to oppose Burr’s progress, it would have been most surprising if Smith,
having a knowledge of Burr’s real plan, had selected this officer as a
person to whom to boast of it. This consideration discloses the true
nature of Smith’s communication to Major Riddle. He believed that he
knew Burr’s plans, and that they were innocent. He therefore told Major
Riddle so; but had he really known them to be criminal, this officer was
one of the last persons in the world to whom he would have disclosed
his knowledge. Thus this casual communication to Major Riddle, which
the malicious industry of Mr. Smith’s enemies has hunted up and adduced
as a proof of his guilt, appears to be a most convincing proof of his
innocence.
But Mr. Smith also told Riddle “that if Burr succeeded, he would prefer
living at Cincinnati, to Philadelphia or New York, on account of
business.” Succeeded in what? Why in the innocent plans, which Smith had
just before told Riddle that he understood better than any person in
Ohio, but one. These plans, as explained by Colonel Burr to Mr. Smith,
were to form a strong and numerous settlement on the Washita, and in case
of a Spanish war to invade Mexico, under the authority of the Government.
And Mr. Smith, without more aid from the imagination than men usually
obtain in such cases, might have brought himself to believe that in case
these plans should succeed, they would give rise to a vast trade between
the country on the Ohio, and the new settlement or conquests; that
Cincinnati would become the centre of this trade, and that he, by reason
of his connections and situation, would be able to obtain a large share
in it. This might have been an airy speculation, but it was certainly an
innocent case; for it is manifest that the plans on the success of which
it was bottomed were innocent plans. Such Smith, at that time, supposed
Burr’s plans to be; or he would not have made his knowledge of them a
subject of conversation with Major Riddle.
That Major Riddle himself viewed the matter in this light, is evident
from his conduct. He was stationed on the river, with the command of a
detachment of militia, and had orders from his superior officer, General
Gano, to collect as much information as possible respecting Colonel
Burr’s plans and associates, and to report this to his General. Of
this we are informed by a deposition of General Gano himself; who also
states that Major Riddle did report to him, but made no mention of this
conversation with Mr. Smith, nor alluded to Mr. S. in any manner. This
conversation, therefore, must have been on the whole of such a nature,
or accompanied by such circumstances, as to make it appear perfectly
innocent to Major Riddle; who, otherwise, must have communicated it
as matter of suspicion at least to his commander. Had we enjoyed the
opportunity of cross-examining Major Riddle, these circumstances, and
the rest of the conversation, would no doubt have been recalled to his
recollection, and fully explained by him. In an ex parte deposition they
have been forgotten, or omitted as unimportant--an additional and very
striking example of the importance of the privilege of being confronted
with the witnesses against us, and of the danger of admitting any species
of ex parte testimony.
I come now, Mr. President, to the testimony of Colonel James Taylor, who
represents Mr. Smith as having, in a conversation with him and others at
Cincinnati, expressed opinions favorable to a separation of the Union.
It is to be recollected that Dr. Sellman, the brother-in-law of Colonel
Taylor, and a warm friend of the present Administration, was also present
at this conversation. This clearly appears from Dr. Sellman’s deposition
of February fifteenth, 1808, compared with the testimony of Colonel
Taylor. Dr. Sellman has stated this conversation with great accuracy:
and he represents Mr. Smith as having not even expressed an opinion,
much less a wish that the Union would be dissolved, but merely as having
repeated the opinions of a writer, under the signature of the Querist,
who had advocated a separation. Dr. Sellman tells us that there were five
or six persons present, none of whom however he names, except Mr. Smith
and Colonel Taylor. Let us take his own words:
“After attending some time to the conversation, I noticed
that a reference was occasionally made to a publication, or
publications, in the Marietta paper. For some time I was at
a loss to determine whether those gentlemen were expressing
their own opinions, or those contained in that publication;
for I was not present at the commencement of the conversation,
though it did appear to me to be a detail of the opinions set
forth in that publication. As it is now impressed on my mind,
I believe, to more fully satisfy myself, I asked a question.
Nor can I perfectly remember whether I intended the question
particularly for Mr. Smith, or for both the gentlemen; but I
believe it was intended for Mr. S. ‘Do you expect or apprehend
an early separation of the Union?’ To which Mr. S. replied,
‘Not in my lifetime; and I hope, or pray to God, I may never
live to see it, whether it takes place sooner or later.’ This
declaration being perfectly satisfactory to me, I paid little
or no attention to the conversation, and afterwards, I believe
soon afterwards, left the place. I did not hear Mr. S., or
any person present, advocate a separation of the Union; nor
have I ever before or since that time, heard Mr. S. advocate a
separation of the Union.”
Thus, then, we see, sir, that these two witnesses--men of equally fair
and respectable character, and equal intelligence--differ entirely in
their manner of understanding this conversation, in which they both
took a part. Colonel Taylor understands Mr. Smith to have advocated a
separation, and Dr. Sellman declares that he did not advocate it, but
merely repeated the arguments of the Querist, and expressed his hope
that a separation might never take place, and that, if it did, he might
not live to see it. Now let me ask whether this contradiction, between
two witnesses equally entitled to credit, does not leave the matter at
least in doubt? Do not the scales hang in equilibrium? And in this state
of doubt, can you decide in the affirmative? Does not the matter remain
precisely as if there were no proof on either side; and can you decide
affirmatively in the absence of proof? Is it not a fair and rational,
as well as legal, presumption, that a man is innocent till his guilt
appears; and can you say that Mr. Smith’s guilt appears, when the only
witness against him is contradicted by a witness of equal credit?
But I go further, Mr. President. I contend that every presumption derived
from the nature of the case, and the circumstances and situation of
the parties, is in favor of the statement made by Dr. Sellman. In the
first place, it appears that Dr. S.’s attention was particularly drawn
to the subject, and that he asked a question for the express purpose
of ascertaining whether those gentlemen spoke their own sentiments,
or merely repeated those of the writer. It is not therefore at all
probable that he would forget, or so widely mistake, a fact, to which
his attention was so strongly attracted. Had Mr. Smith advocated a
separation, as is now supposed by Colonel Taylor, Dr. Sellman could not
possibly have been in doubt on the subject, and his question would have
been useless and silly.
Secondly, we find Dr. Sellman very accurate and positive in his
recollection of Mr. Smith’s answer. It is impossible to suppose him
mistaken in a point which interested him so much, and must have made so
strong an impression on his mind. This answer of Mr. Smith is utterly
inconsistent with the statement of Colonel Taylor; for it is incredible,
that after having advocated a separation to Colonel Taylor and General
Findley, he should immediately, and in their presence, deprecate it to
Dr. Sellman as a misfortune, which he hoped, if it must befall us, he
should not live to see.
Thirdly, as Dr. Sellman was warmly opposed to a separation, it is most
certain that his attention must have been very strongly arrested, and
indeed his indignation excited, by such a conversation as Colonel Taylor
attributes to Mr. Smith; which could not have escaped his attention, or
so soon have been effaced from his memory.
It appears, in the fourth place, that there were several other persons
present at this conversation. Dr. Sellman says five or six, though he
does not name any of them. Colonel Taylor says that General Findley was
present. Now let me ask, if such sentiments had been expressed, in such
a company, by a man holding Mr. Smith’s situation in the Government,
would they not have attracted great attention, and given rise to much
conversation? Would not the matter, in all probability, have come to the
ears of some of those persons in Cincinnati who have been so active and
persevering in collecting testimony against Mr. Smith? And would not some
of those who heard this conversation, beside Colonel Taylor, have been
called on to testify?
Again: Why should Mr. Smith, on this occasion alone, have made himself
the advocate of dismemberment? Had he been disposed to preach this
doctrine, in the hope of making converts, would he have confined his
exertions to this one time and place? There is no evidence, nor even
accusation of his having broached the subject any where else; and if he
had done so, it could hardly have escaped notice. Had he been a promoter
of separation, would he have addressed himself solely to those persons
whom he must have known to be most averse from it; or would he not have
chosen for his hearers the weak and ignorant, who were most likely to be
affected by the usual arguments in favor of such a measure?
All these difficulties are reconciled by supposing, with Dr. Sellman,
that Mr. Smith merely repeated, without approbation, the opinions of
the Querist; and that Colonel Taylor misunderstood him as stating his
own opinions and wishes. He might even have gone further, and have
expressed an opinion or apprehension of his own, that the Union would
one day separate. That such a speculative opinion, or rather fear, is
entertained by many among us, who most ardently deprecate the event, is
notorious; and we find, from General Carberry’s testimony, that Colonel
Taylor himself is of this number. He told Gen. Carberry that he thought
the Union would separate in twenty years, and Gen. C. reproved him for
fixing even an imaginary period to its duration. It does not follow
from this that Colonel Taylor wished for a separation; and, surely,
what he innocently thought and expressed, as a matter of speculative
opinion, or of fear and dread, Mr. Smith may have innocently thought
and expressed in the same manner. That Colonel Taylor should mistake
the nature and extent of these expressions; should understand them as
arguments in favor of separation, is far more probable, than that Mr.
Smith should have advanced such arguments, at such a time, and in such a
company. When to this strong probability we add the positive testimony
of Dr. Sellman, I cannot but confidently hope that it will remove every
doubt on the subject. Had Mr. Smith advocated a separation of the Union
at such a time, it would no doubt have justified strong suspicions of
his being connected with the plans of Colonel Burr, which probably had
dismemberment, in part at least, for their object. But I humbly trust,
Mr. President, that the charge, without impeaching the integrity of so
respectable a witness as Colonel Taylor, has been completely disproved.
The next circumstance alleged against Mr. Smith, as evidence of a
connection with Colonel Burr, is the visit which he paid to Frankfort,
in Kentucky, in the autumn of 1806. This has been supposed to be a
visit to Colonel Burr; but the testimony which we have adduced shows
most satisfactorily, that it was a journey on public business. To this
point our evidence is full and complete. Mr. Smith, then contractor
for the army, was called on for very large supplies, on account of the
additional force called to the Sabine. He found, on inquiry from his
agents in Kentucky, whose depositions we have produced, and who are
proved to be men of character, that purchases could be made there on
very advantageous terms, for cash. He was not in cash, and therefore
resolved to try whether he could sell or discount bills on Philadelphia.
The best prospect of making this operation to advantage, and indeed
the only prospect of making it at all, was with the Insurance Company
at Lexington, which acts as a bank and exchange office. He accordingly
went to Lexington for that purpose. On his arrival there, he heard, for
the first time, as is fully proved, that Colonel Burr was on his trial
at Frankfort, where most of the directors of this Insurance Company
were attending the trial. He then resolved to go to Frankfort, for the
purpose of sounding them on the subject. He arrived there in the evening,
and stopped at a tavern, where he soon learned that Colonel Burr also
lodged. In the course of the evening, he paid a short complimentary
visit to Colonel Burr, saw some of the directors, learned from them that
his object of selling or discounting bills could not be accomplished,
and early next morning set out on his return home. All these facts are
satisfactorily proved. I will not recapitulate the testimony, which is
fresh in the recollection of the honorable members. But, I ask, what is
there criminal or suspicious in this transaction? Surely, it would be a
waste of time to employ it in the refutation of such a charge.
The next point to which I am to call the attention of this honorable
House, is the bill drawn by Colonel Burr on Mr. Smith, in favor of
Lieutenant Jackson. The drawing of this bill is adduced as a proof
of connection between Colonel Burr and Mr. Smith. It admits of most
satisfactory explanation in two different ways.
In the first place, it is notorious that Colonel Burr, in order to
increase the number and the confidence of his partisans, was in the
habit of representing himself as being connected with, and supported by,
many persons, whose names he supposed would add some credit and weight to
his enterprise; and who are known to have opposed his schemes, instead
of being engaged in them. Of this, the case of Commodore Truxton is a
striking instance. In this case, we find that Colonel Burr was very
desirous of engaging Mr. Jackson in his enterprise. Jackson was reluctant
and doubtful. Mr. Smith was a man of note and consequence, whose name
might well be supposed to have much influence on the mind of a youth like
Jackson; and to draw a bill on him, for an object connected with the
enterprise, was an indirect, but very significant mode of telling Jackson
that he was engaged. To artifices of this kind, we know that this unhappy
man had constant recourse. He, no doubt, sometimes deceived himself; but
he very often attempted to deceive others, in hopes of drawing them into
those schemes which have plunged him into irretrievable ruin.
Secondly, we know that Colonel Burr, when he set out from Cincinnati
on his journey down the river, left a sum of money in the hands of
Mr. Smith. This is proved to be usual with persons travelling in
that country, and may have been done by Col. Burr, from motives of
convenience, or with a view of giving himself the appearance of a
connection with Mr. Smith, by drawing on him. But it was done. The
money was in Mr. Smith’s hands. Colonel Burr had drawn for it, in favor
of Belknap, and he could not have known that Belknap’s bill had been
accepted, or would be so, before Jackson’s should be presented. He had
drawn in favor of Belknap, for his own use. He might, therefore, well
have supposed that the money was still in Mr. Smith’s hands, and that he
had a right to draw for it.
But, in whatever way we account for his drawing this bill, it was his
own act; an act which he had no right to do, beyond the money left by
him in Mr. Smith’s hands. To bring this act home to Mr. Smith, and make
it evidence against him, it must be shown that he had given Colonel Burr
authority to draw. In other words, had agreed to supply him with funds.
Drawing the bill is nothing more than a declaration by Colonel Burr;
and this declaration cannot affect Mr. Smith, unless he authorized it
previously, or confirmed it afterwards by paying the bill. Colonel Burr
drew a bill on me for $1,500, which I had not authorized, and declined
to accept. Because Colonel Burr thought fit to take this step, am I,
therefore, to be considered as engaged in his schemes? Surely, his mere
declaration cannot be allowed to criminate Mr. Smith. If it could, how
extensively would the principle operate! How many of the best men in the
country would be implicated!
There is another circumstance which strongly confirms the view which
we give of this subject. When Colonel Burr directed Jackson to call
on Smith with the bill, he does not tell him to apply to Smith for any
information concerning his plans. On this subject, he referred him solely
to General Tupper. So says Jackson, expressly. But why to Tupper, rather
than Smith? Smith was a much more important man than Tupper; and if
engaged in the scheme, was quite as capable of giving him information. He
would have given it much sooner, too, for Tupper lived at Marietta, and
Smith at Cincinnati; where Jackson, in his journey up the river, would
first arrive. Why, then, I say, direct the application to Tupper, rather
than to Smith? Sir, the reason is obvious. Colonel Burr, though he might
have been willing to insinuate, by drawing the bill, that Mr. Smith was
engaged, knew very well that he was not; and that, if he should direct
Jackson to call on him for information, it would lead to detection. This
fact alone proves, more strongly than a thousand witnesses, the innocence
of Mr. Smith. Witnesses may misunderstand, forget, or prevaricate; but
facts like this lay open the hearts of men, let us into their inmost
thoughts, and speak a language which we can neither misunderstand nor
disbelieve.
As to the bill drawn by Colonel Burr on Mr. Smith, in favor of Belknap,
which Mr. Smith paid, and which forms the next head of accusation, I
beg leave to read to the Senate the testimony of General Carberry. He
states that, some time before the date of this bill, Mr. Smith informed
him that Colonel Burr, finding it inconvenient to carry his money with
him, when he went down the Ohio, left it at Cincinnati in the care of
Mr. Smith; a circumstance which the same witness proves to be usual with
persons travelling in that country, and on which it is impossible to
lay any stress: for every body must admit that had the money been left
for any improper purpose, Mr. Smith would have kept the knowledge of it
to himself, instead of communicating it as he did to General Carberry.
The bill drawn in favor of Belknap, and paid, might of itself, standing
alone, furnish some ground of suspicion against Mr. Smith, as tending to
show that he was in the habit of supplying Colonel Burr with funds; but
when it comes to be connected with the deposit of money, which is proved
by General Carberry, it is completely explained. For nothing was more
natural than that Colonel Burr, having left his money with Mr. Smith,
should direct it to be paid to a person to whom he owed it, or who was to
employ it for his benefit.
I come now, Mr. President, to the seeming contradiction between the
statement of Mr. Smith, and the testimony taken at Richmond on the trial
of Colonel Burr, upon which I understand that some stress is laid. I say
the “seeming contradiction,” because I feel confident of being able to
show clearly that no real contradiction exists.
Mr. Smith, in his deposition before Matthew Nimmo, states that Colonel
Burr, early in September, 1806, spoke of the settlement of his Washita
lands. By the testimony given at Richmond in the trial of Colonel Burr,
by Lynch, from whom those lands were purchased, it appears that the
contract was not made with Colonel Burr till after the time when Mr.
Smith states this conversation to have taken place. Hence it is inferred
that Colonel Burr could not have spoken to Mr. Smith of his Washita lands.
But is it forgotten that Colonel Burr was in the habit of speaking of
these lands as his, and of his intention of settling them, long before
the period assigned by Mr. Smith for this conversation? This appears from
the testimony of Commodore Truxton, delivered at Richmond on the same
trial. He states, that in the summer of 1806, before Colonel Burr set out
for the Western country, he spoke of his Washita lands, and of his plan
of settlement. This he did either because he had then made an informal
contract for those lands, and therefore considered them as his, though
the formal contract of sale was not then made; or because he had then
contrived this disguise for his projects, and merely made use of it to
cover his real design, from Smith and others with whom he thus conversed.
In either case he would speak of the land as belonging to him. Indeed,
this whole argument against Mr. Smith rests on the idea that Colonel
Burr cannot be supposed to have said any thing that was not true. Mr.
Smith states that Colonel Burr spoke of his Washita lands, at a time when
those lands in fact were not his. Therefore Mr. Smith must have stated
an untruth. I believe that gentlemen will not, on reflection, find this
argument very solid.
One more point, Mr. President, and I shall conclude an argument, by which
I fear this honorable body has been, as I certainly have, very much
fatigued.
It is said that there exists a strong similarity between the deposition
of Elias Glover, and the statement made by Mr. Smith himself, on oath;
whence it is inferred that the deposition must be true. I must confess
that I have not been able to discover this similarity; but if it really
exist, it may be easily accounted for. Mr. Smith’s statement was sworn
before Nimmo, on the sixth of January, 1807. Nimmo, it appears, kept a
copy, for on the next day he certifies a paper as being a true copy of
the deposition sworn to before him by Mr. Smith. This he could not have
done, unless he had kept a copy, with which to compare this paper. On the
second of February following, Glover made this deposition, before the
same Matthew Nimmo. Now we know that Nimmo was the confidential friend
and adviser of Glover; and we may very easily conceive that, before
Glover prepared his deposition, he had been indulged by his friend with
a perusal of the copy of Mr. Smith’s, and that to give the greater air
of truth to this tale, he imitated the language as much as he could, and
followed the statement of facts, as far as would suit his purpose.
Again: It is very probable that Nimmo wrote the deposition of Glover;
and that, having Smith’s deposition on the same subject fresh in his
recollection, he fell insensibly into the use of the phrases. This is
known frequently to happen. Or the resemblance may be merely accidental.
And surely a resemblance between some phrases of these two depositions,
which may have proceeded from accident, or from design in Nimmo or
Glover, is very weak ground for inferring the truth of facts so utterly
improbable as those stated by Glover, and so strongly contradicted by
the great mass of testimony which we have produced; among which are
the declarations of Glover himself, and the oath of his friend and
confederate McFarland.
Having now, Mr. President, reviewed all the grounds on which the charge
against Mr. Smith is rested; having, as I presume to hope, satisfactorily
explained all the objections which have been urged against him; and
presented all the facts fairly, and as clearly as was in my power, to
the view of this honorable House; I am far from intending to trouble it
with any arguments of mine on the subject. The enlightened individuals
who compose it are much more capable than me of drawing the proper
inferences from the testimony which has been laid before them, and on
which they have bestowed a most patient and laborious attention: and to
their judgment I cheerfully, and I may be permitted to say confidently,
submit the cause of my client. They will doubtless bear in mind, that in
this cause is involved his honor, dearer to him than property or even
life; and that in pronouncing their decision they ought to be guided by
testimony, and not by conjecture; by the light of truth, and not by the
dark and deceptive glimmerings of suspicion.
When Mr. HARPER had concluded, the consideration of the subject was
further postponed.
FRIDAY, April 8.
_Case of John Smith._
The Senate resumed the consideration of the first report of the committee
appointed to inquire into the conduct of John Smith, a Senator from the
State of Ohio, as an alleged associate of Aaron Burr.
A short conversation arose on the course of proceeding, some diversity of
opinion existing as to the propriety of deciding on the report generally,
or on the resolution of expulsion with which it concludes. When on motion
of Mr. FRANKLIN, it was agreed, without a division, to proceed to the
consideration of the resolution, as follows:
_Resolved_, That John Smith, a Senator from the State of Ohio,
by his participation in the conspiracy of Aaron Burr against
the peace, union, and liberties of the people of the United
States, has been guilty of conduct incompatible with his duty
and station as a Senator of the United States; and that he be
therefor, and hereby is, expelled from the Senate of the United
States.
Mr. ADAMS then rose and addressed the Senate, and after replying to the
legal views presented by the defence, went on to say--
I have now finished my remarks upon that part of Mr. Smith’s defence,
which rests upon the supposed irregularity of the proceedings which
have hitherto been sanctioned by the Senate, on this investigation, and
upon objections against the principles maintained in the report of the
committee. The question on the facts remains still to be discussed.
What, then, is the evidence of Mr. Smith’s participation in the
conspiracy of Aaron Burr?
Since the resolution now under consideration was first offered to the
Senate, the state of the evidence has very considerably changed; in
some respects favorably to Mr. Smith’s defence; in others, to my mind,
more inauspiciously. The testimony of Elias Glover, I consider as
totally discredited; but since the deposition produced by Mr. Smith to
the committee, with his answers to their queries, I gave very little
credit to that witness, even before the accumulation of evidence against
him, which Mr. Smith has since obtained, and recently exhibited to the
Senate. Even then I thought the testimony of Glover could be of very
little weight, otherwise than as it was confirmed by that of others.
With the same exception, I now give it no credit at all. Stripped of the
confirmation which it may receive, from admitted circumstances, from
other testimony, and from Mr. Smith’s own acknowledgments, I consider the
case as if no affidavit of Glover belonged to it.
But if the credit of Elias Glover has been annihilated, that of Peter
Taylor has been beyond all controversy confirmed. In his answers to the
committee, Mr. Smith denied almost all the material facts, (and material
in the highest degree they are,) attested by Peter Taylor, respecting
him, on the trials at Richmond, and he declared his belief that he could
prove, by witnesses of the first respectability, his want of character as
a man of truth and veracity. Since then, Mr. Smith has had the fullest
opportunity to cross-examine the man himself, and to take testimony to
his general character. And what is the result? The general character
of Peter Taylor has risen purified from the furnace. In every witness
of whom the question was asked, he had found a panegyrist. One or two
mistakes of circumstances perfectly immaterial to Mr. Smith, or to any
other person implicated, have been discovered in a lynx-eyed scrutiny
of his testimony at Richmond; and the candor with which he instantly
acknowledged them, and the firmness with which on Mr. Smith’s inquiries,
he persevered in asserting all the important facts of his narrative, have
given to his evidence a much greater weight than it could claim before.
So decisive indeed is it, that Mr. Smith’s counsel now solemnly admits
those facts which Mr. Smith had as solemnly denied in his answer; and
argues with his usual ingenuity to dispel their effect.
Of Colonel James Taylor, the testimony has been in one respect
counteracted, and in another much strengthened. His character was so
well known, and so universally respected, that no attempt could be
made to assail it, other than on the basis of a supposed mistake. This
mistake, Mr. Smith, in his affidavit, made before he left this place,
asserted that he expected to prove by General Findley; the only third
person in hearing, according to Colonel Taylor’s statement, when the
conversation, occasioned by the _Querist_ occurred. Mr. Smith returns
without the deposition of General Findley; but in its stead he brings a
deposition of his friend Dr. Sellman, and also a private letter to him
from the same Dr. Sellman, intimating that General Findley could not
confirm Colonel Taylor’s testimony; but with a broad insinuation that
General Findley would not give that deposition in favor of Mr. Smith,
which he ought, for fear of losing his office. On the fact of this
particular conversation, then, we must balance the weight of testimony
apparently contradictory. It is barely possible that the conversations
mentioned by the two witnesses, were not the same, but held at different
times; and as evidence seemingly variant between two persons of
character, ought always, if possible, to be reconciled, perhaps the fair
and candid construction would be that. If, however, it was the same
conversation, we must be reduced to the necessity of choosing which of
the two witnesses has been most correct in his recollection. I cannot
but consider the express testimony of Colonel Taylor, confirmed by the
silence of General Findley, as that which is best entitled to our belief.
Colonel Taylor, we know, was on this occasion a most reluctant witness;
he had been the friend and intimate acquaintance of Mr. Smith; his
principle obviously was to say as little as possible, consistent with his
obligations to speak the truth. The impressions on his mind did not stand
singly upon his judgment; he had compared them with those of General
Findley, and by that comparison had found them confirmed. They had not
slumbered upon his memory for a length of time, so as to lose their
distinctness. He had communicated them to the Secretary of State in his
letter of the 13th of October, 1806, written a very few days after the
conversation was held. An extract of this letter is in evidence before
us, and it tallies exactly with Colonel Taylor’s testimony given to the
committee and before the Senate. The impartiality of Colonel Taylor,
his candor, his tenderness for Mr. Smith, the excellency of his general
character, and his appeal to the recollection of another respectable
witness in confirmation of his own, all combine to give his testimony
the highest claim to our belief. With Dr. Sellman I have no personal
acquaintance, and can, therefore, speak of him only upon the evidence
exhibited here on this occasion. He appears at least, in the character
of a very ardent partisan of Mr. Smith. In the newspapers transmitted
to us, I see his name at the foot of several very violent publications,
which have not been read, but which show that fifteen months ago he
had in some sort staked his own character upon the reputation of Mr.
Smith. A number of depositions concur to prove that he, in company with
a man who has since been convicted of an atrocious robbery, was at the
head of a party who burst open the doors, and broke in upon a meeting
of private citizens assembled to pass certain resolutions unfavorable
to Mr. Smith, and threatened them with a coat of tar and feathers. The
insinuation in his private letter to Mr. Smith, against the fair fame of
General Findley, bears no distinguishing features of an ingenuous mind.
I cannot believe that General Findley, a man of honorable consideration
in society, holding an important public trust, could have been actuated
by such unworthy motives in declining to contradict Colonel Taylor’s
deposition. Could he have done it consistently with truth, he had every
inducement that could operate upon generous feelings to do it. His
contradiction would not have impaired the reputation of Colonel Taylor.
It would not have induced a probability that he was mistaken. But to Mr.
Smith it was of the first importance--his reputation in the world, his
seat in the councils of the nation, the comfort of his life, the peace
and happiness of his family, were all at stake, and called in the most
imperious manner for the testimony of a man, who, by merely declaring
that he had understood his meaning differently from the witness appealing
to him, might have removed from him the burden of this imputation. It is
impossible to believe that he was deterred from such an act of signal
justice, by the base and contemptible fear of losing his office.
But, in addition to the evidence exhibited before the departure of Mr.
Smith from this place, a multitude of new depositions are now produced;
most of them obtained by himself, for the purpose of his own exculpation,
and two or three furnishing strong additional circumstances against
him; even those which he brings for his own discharge, have disclosed
a fact of the highest import, in my estimation, very unfriendly to
his defence. I mean his studious avoidance of appearing before the
grand jury at Frankfort, in Kentucky, on the second complaint against
Burr, in December, 1806. From the fullest consideration which I have
been able to bestow upon the whole mass of this additional testimony,
I have not discovered in it any ground sufficient for the rejection
of this resolution. I still am convinced that it ought to pass. The
most material of all the witnesses, to demonstrate that conduct of Mr.
Smith, which, in my mind, imposes upon the Senate the necessity of
coming to this decision, is _himself_. It is the coincidence between his
course of conduct and that of Mr. Burr; his own tardy acknowledgments;
his own alternate denials and admissions; his own consciousness of
participation in unlawful proceedings, and the testimony of his own
witnesses, which constitute the most irresistible evidence against him.
The other witnesses and the circumstances of the times, chiefly serve
to corroborate and elucidate, what he and his witnesses show, in feeble
characters, and indistinct obscurity.
To exhibit this coincidence of conduct between Mr. Smith and Mr. Burr,
in that light of which it is susceptible, it may be necessary, Mr.
President, to review the transactions of Col. Burr, in relation to these
projects, from the time when he descended from that chair, in which you
now sit, until the arrival of the President’s Proclamation at Cincinnati,
on the 13th of December, 1806; and to compare the conduct of Mr. Smith,
contemporaneous with the several events of public notoriety, and with
the facts testified by the witnesses, in the volume of evidence taken
at Richmond, and transmitted to Congress by the President of the United
States, with the purposes and views of Mr. Burr, at the several stages in
the progress of this conspiracy.
On the 3d day of March, 1805, the term of Mr. Burr’s career as Vice
President of the United States expired. How long, before that time, he
had been revolving in mind his designs upon the western division of
the Union, we need not inquire; but that they were then entirely new,
there is every reason to believe. It is known to many, perhaps to all
the members of this body, who were in the Senate at the time, that Mr.
Burr, during that period, paid a very studied attention, and professed
a peculiar respect to Mr. Smith. Very soon after this, in the spring,
summer, and autumn of 1805, Mr. Burr was traversing the Western States
and Territories, down to New Orleans, busily engaged in making every
preparation possible, at that time, for the campaign of the ensuing year;
even then we find, from a great variety of testimony, that Cincinnati,
Mr. Smith’s place of residence, was a spot where a great portion of Mr.
Burr’s exertions had been made; even then, from the depositions produced
by Mr. Smith, it appears that a Western empire, with _Cincinnati_ for its
capital, had been fully disclosed to William McFarland. This importance
of Cincinnati may serve to explain Mr. Smith’s observation to Major
Riddle, that, if Burr succeeded, he would prefer living at Cincinnati,
rather than at Baltimore or Philadelphia.
In the winter of 1805, Mr. Burr returns, to spend his time at this place,
and at Philadelphia. Here it was that he made his overtures to Mr. Eaton,
from whose testimony I must ask your permission, sir, to read two or
three extracts, showing how far his projects were then matured:
“Col. Burr now laid open his project of revolutionizing the
territory west of the Alleghany; establishing an independent
empire there--New Orleans to be the capital, and he himself to
be the chief; organizing a military force on the waters of the
Mississippi, and carrying conquest to Mexico.”
“He stated to me that he had in person (I think the preceding
season) made a tour through that country; that he had secured
to his interests, and attached to his person, the most
distinguished citizens of Tennessee, Kentucky, and Territory
of Orleans; that he had inexhaustible resources and funds;
that the army of the United States would act with him; that
it would be reinforced by ten or twelve thousand men from the
above-mentioned States and Territory.”
“He mentioned to me none, as principally and decidedly
engaged with him, but General Wilkinson, a Mr. Alston, who,
I afterwards learned, was his son-in-law, and a Mr. Ephraim
Kibby, who, I learned, was late a captain of rangers in Wayne’s
army.” “Of Kibby, he said, that he was brigade major in the
vicinity of Cincinnati, (whether in Ohio or in Kentucky,
I know not,) who had much influence with the militia, and
had already engaged a majority of the brigade to which he
belonged, who were ready to march at Mr. Burr’s signal. Mr.
Burr talked of this revolution as a matter of right inherent
in the people, and constitutional; a revolution which would
rather be advantageous than detrimental to the Atlantic States;
a revolution which must eventually take place; and for the
operation of which the present crisis was peculiarly favorable;
that there was no energy, to be dreaded, in the General
Government, and his conversations denoted a confidence that
his arrangements were so well made that he should meet with no
opposition at New Orleans, for the army and the chief citizens
of that place were ready to receive him.”
Such, then, was the plan of Mr. Burr, and such, by his declarations,
the state of his preparatory measures in the winter of 1805-’6; and I
have read the part of his statement relative to Major Kibby, (and I
mention it now, lest I might hereafter forget it,) because it may serve
to explain what Mr. Smith said to Major Riddle just after the arrival of
the President’s Proclamation at Cincinnati; that he (Smith) knew more
of Burr’s plans than any man in the State of Ohio, except _one_. Here,
it seems, there was one man, who knew them very sufficiently; and it
appears, by the depositions produced by Mr. Smith, that William McFarland
also knew a great deal of them.
Let us follow Mr. Burr to Philadelphia, and notice some particulars of
his conversation there with Commodore Truxton, in July, 1806. I shall
read from the Commodore’s testimony only those parts which may serve best
to connect the chain of events, and to show the consistency of Burr’s
purposes. He had previously, in the winter, talked with that gentleman
about land speculations, but in July, 1806, “he observed, (says the
Commodore,) that he wished to see, or to make me (I do not recollect
which) Admiral; for he contemplated an expedition into Mexico, in the
event of a war with Spain, which he thought inevitable. Mr. B. then asked
me if I would take the command of a naval expedition. I asked him if the
Executive of the United States was privy to or concerned in the project.
He answered me emphatically that they were not. I told Mr. Burr that I
would have nothing to do with it.” “Mr. Burr observed that, in the event
of a war, he intended to establish an independent Government in Mexico;
that Wilkinson, the army and many officers of the navy, would join. I
replied, that I could not see how any of the officers of the United
States could join.”
“Mr. Burr asked me if I would not write to General Wilkinson, as he was
about to despatch two couriers to him. I told him that I had no subject
to write on, and declined writing.”
This conversation was about the last of July; and I must now recur to
one or two passages in the famous ciphered letter of Gen. Wilkinson. In
the copy I have before me, it has no date,[51] but the formal letter of
introduction, which Mr. Swartwout carried with it, is dated 25th July,
1806. It was, then, written on or near the same day when Mr. Burr had his
last conversation with Commodore Truxton.
This letter indicates that Mr. Burr was on the point of departure for the
execution of the enterprise, which it declares he had actually commenced;
that detachments were to rendezvous on the Ohio, 1st November, and to
move down rapidly from the falls on the 15th of November, with the first
five hundred or one thousand men, in light boats, constructing for that
purpose.
It adds: “Burr will proceed westward, first August, never to return; with
him goes his daughter; the husband will follow in October, with a corps
of worthies.”
Finally, the letter contains also this passage: “Already are orders
to the contractor given to forward six months’ provisions to points
Wilkinson may name; this shall not be used until the last moment, and
then under proper injunctions.”
Whether Mr. Burr did actually leave Philadelphia on the 1st of August, as
his letter announces, I am unable to collect from any of the testimony
that has fallen under my observation; but on the 21st of August he had
reached Pittsburg; and there he invited himself to dinner the next day
with Col. Morgan, in a manner precisely similar to that in which he so
shortly afterward invited himself to pass five or six days at the house
of Mr. Smith. At Colonel Morgan’s, he dined and lodged one night. I shall
not recur specially to the remarkable testimony of Colonel Morgan and his
son, for it must be fresh in the recollection of every one who hears me.
I shall barely notice that, during his short visit here, he broached all
his doctrines respecting the imbecility of the present Administration,
and the right, the interest, and the provocations which the Western
people had to separate them from the Atlantic States. He was here
commencing that mode of operation for effecting the dismemberment of the
Union, which, in his subsequent letter of the 26th October to Mr. Smith,
he states to be the only mode in which that object could be accomplished.
His experiment did not commence in the right place. His attempt to tamper
with men of honor and sentiment, met the reception it deserved. He left
the house before breakfast the next morning.
On the 1st of September he had descended the river and was upon
Blannerhasset’s island; and, on the 4th of the same month, appeared in
the newspaper, at Marietta, the first number of the _Querist_, which
was followed by two or three more. I have been unable to obtain a copy
of these papers, but the substance of their contents is well known.
Their object was to prepare the minds of the people, in that part of the
country, for a separation from the Atlantic States; they dilated upon all
the topics so familiar in the mouth of Mr. Burr; and so much were they
identified with his doctrines, that Dr. Wallace, one of the witnesses at
Richmond, with whom Burr had conversed on these subjects in the summer
of 1805, declares that, on his first perusal of these papers, he drew
from their internal evidence the conclusion that the ideas were Burr’s,
and the language Blannerhasset’s. Blannerhasset was, indeed, the writer,
and precisely at the same time and immediately after, was ranging the
country with the activity and spirit of a recruiting officer--promising
the plunder of banks at New Orleans and of Mexican mines--settling the
hereditary succession of the fancied Crown; and teeming with embassies
and empires.
On the very same day that the first number of the “Querist” appeared at
Marietta, the 4th of September, Mr. Burr, by the pencilled note, invites
himself to the house of Mr. Smith, in Cincinnati, where he is hospitably
received and entertained five or six days. During this time, he spends an
evening at William McFarland’s, where he holds exactly the same kind of
conversation about the impotence of the Government, the rights and wrongs
of the Western country, and their inducements to separate from the rest
of the Union. About the 10th of September he leaves Mr. Smith’s; proceeds
to Lexington, in Kentucky, where he arrives and concludes his contract
for the Washita lands, before the close of that month.
Mr. Smith, in his answers to the queries of the committee, (an answer
which he offered to make upon oath,) says that, on this visit, Colonel
Burr tarried with him five or six days, and then progressed on his
journey: for what he next adds, I must refer to his own words:
“But he did not disclose to me ANY object he had in view.
Meanwhile the voice of suspicion and jealousy was raised
against him, and although I knew as little of his objects in
visiting the Western States as either of you, still, as I had
entertained him in conformity to the customs in which I was
reared, and according to my own sense of propriety, I felt
uneasiness and jealousy in consequence of these reports.”
The character of Colonel Burr is now generally well understood; and, when
combined with the circumstances I have just mentioned, and with others
which I am about to mention, it is difficult to conceive that his visit
to Mr. Smith at this time should have been made without design. For the
projects he contemplated, and which he was then attempting to carry into
execution, Mr. Smith was a man of the very first importance. As a Senator
of the United States, it is obvious how useful his services might become,
in his attendance here, during the session of Congress. As a contractor
for building gunboats, and for supplying the army with provisions, he
could, without exciting suspicion, and without danger of detection, be of
the greatest use in performing the same services, and furnishing for Mr.
Burr the same kind of supplies. As a man of influence and consideration
in the State to which he belonged, his aid in propagating the doctrines
of disunion, and in contributing to the accomplishment of that end, were
not less desirable. The motives of profit and of distinction which might
be held up to his expectations, were of a nature as persuasive upon a
mind, which could be as susceptible of receiving them, as those of making
Truxton an Admiral, or Eaton a General. Is it, then, credible that,
while Burr was proceeding upon his business, with all the activity and
energy of his character; while his boats were building and his provisions
collecting; while he was obtruding almost upon every stranger and
transient acquaintance, that he found in his way, the opinions which were
suitable to his purpose--while Blannerhasset was filling the newspapers
with rebellion, and engaging men for war, under his standard--is it
credible, I say, that Burr should have solicited entertainment under the
roof of Mr. Smith, and obtained it, for five or six days, without so much
as intimating to him any one of his purposes? Is it credible that, in the
course of that visit and in the intimacy between the parties, which the
whole transaction so strongly implies, amidst the violent suspicions with
which Mr. Burr, even then, was notoriously surrounded, there should never
have occurred to the friendly solicitude of Mr. Smith a single inquiry
which would have led to a disclosure, real or pretended, of the object of
Mr. Burr’s visit, and of his progress through the Western States? Should
this be deemed, under all these circumstances, a credible thing, I then
ask, how Mr. Smith’s asseveration that Burr did not then disclose to him
ANY object he had in view, is to be reconciled with Mr. Smith’s affidavit
of 6th January, 1807, in which he says, “Burr did then speak to him about
his project of settling a large tract of his Washita lands.”
It is one of the peculiarities attending Burr’s conduct, through the
whole of his conspiracy, that he had always an ostensible object,
to serve as a mask to the real design. One of the difficulties and
inconveniences of this method of transacting business is, that in
exhibiting the purpose, which is meant only for show, it is apt to be
materially variant from itself at different times. It is often variant,
not upon trivial incidents, with which the best human memory cannot be
accountable for perfect accuracy, but upon the most essential part of the
story. It is inconceivable to me, that, at that precise period of Mr.
Burr’s experiment upon the Western States, he should thus have been, at
his own desire, the guest of Mr. Smith, five or six days, without making
to him any communication of his real views, while he was so liberally
disseminating them to others far less intimate to his acquaintance, and
far less important to his purposes--and when we find Mr. Smith’s own
narrative, upon this very point, so variant from itself at different
times, how can we suppress the belief that the real story was not that
which could safely be told?
The conversation to which Colonel James Taylor attests, occurs within a
very few days after the departure of Mr. Burr from Mr. Smith’s house,
at this period. The subject of that conversation was the separation of
the States. Mr. Smith takes pains to circulate that _Querist_, which
was to scatter the seeds of disunion throughout the Western country.
Mr. Smith adopts its arguments as his own; and adds others of the same
tendency to assist its effects. Mr. Smith contends that these doctrines,
however obnoxious then, _in less than two years would become_ ORTHODOX.
Is there no knowledge and participation in Burr’s projects on the face
of these expressions? We are told they were speculative opinions; and we
hear complaints that a man should be held accountable for his political
speculations. But when speculative opinions are associated with military
preparations, and a formidable enterprise in the very process of
execution, then, sir, they assume a very different complexion from that
of free and legitimate discussion. Speculative opinions, at all times,
have such an influence upon practice, that I hold it not very justifiable
in a man vested with public trust, to speak in terms of approbation, of
a dismemberment of this Union, upon any contingency, or at any distance
of time. We ought to deprecate this greatest of all possible calamities,
for our posterity as well as for ourselves. Yet, I acknowledge, that
even these dangerous opinions, when merely speculative, may be expressed
without evil intentions, and ought not to draw the weight of public
censure upon the person using them, in the form of a decision of this
body. It is the time, the occasion, the circumstance, upon which this
speculative opinion was divulged, which display it as evidence of Mr.
Smith’s participation in Burr’s conspiracy against the Union.
We have followed the course of events until the close of September, about
which time Blannerhasset follows Mr. Burr into Kentucky. In the course of
that and the following month, the preparations and conversations of both
these personages, the numbers of the Querist, and certain publications of
an opposite character, which appeared in another newspaper, called the
Western World, had roused the suspicions, the anxieties, the resentments
of the people in that part of the Union, to the highest degree. About the
20th of October, Mrs. Blannerhasset found it necessary to despatch Peter
Taylor from the island, into Kentucky, for the purpose of warning Burr
that he could not, with personal safety to himself, return to the island.
Taylor was to go first to Chilicothe, then to Smith’s, at _Cincinnati_;
and there he was to be told where Burr and Blannerhasset were to be
found. At this time it was no longer safe to inculcate the disunion of
the States. The people there, I thank God, were not to be deluded by Mr.
Burr’s mode or by any other mode of effecting a dismemberment. They were
true to themselves and to their country. The public odium had arrived at
such a pitch, that it might not be advisable for Mr. Smith to appear so
intimate with Burr, as to know where he was to be found, and it might
also be necessary for him to have the ostensible object of Mr. Burr’s
purposes ascertained. For, although he says that, when Burr was with him
in September, he had talked about the settlement of the Washita lands,
yet, at that time, the purchase was not made.
This view of the state of things at that time will explain the
particulars of Peter Taylor’s testimony. When he arrives at Mr. Smith’s,
and inquires for Burr and Blannerhasset, Mr. Smith answers, that he knows
nothing of either of them. That Taylor must be mistaken; that was not
the place; but finding Taylor to be Blannerhasset’s servant, he tells
him, “he expected they were at Lexington, at the house of a Mr. Jourdan.”
Now, sir, what does this denial, in the first instance, that he knew any
thing of them, and this pointing so precisely afterwards to the very
house where they were to be found, indicate? The counsel for Mr. Smith
says, that Taylor was sent there for Mr. Burr’s greatcoat; nothing of
that appears in the evidence. But, from Taylor’s declaration, it appears
that he was sent there to ascertain where Burr and Blannerhasset were to
be found; that Mr. Smith, at first, denied knowing where they were, and
afterwards told him the very house in Lexington where he was to go for
them. As the sole object of Taylor’s going to Mr. Smith, was to inquire
where Burr and Blannerhasset were, and as, before he left the house,
Mr. Smith gave him a letter for Burr, under _cover_, to Blannerhasset,
it is impossible to doubt the correctness of Taylor’s testimony in
that respect; that Mr. Smith told him where to go. The inference is
irresistible. This accurate knowledge where they were, and this express
denial of that knowledge to a man whom he supposed a stranger, is a proof
that, even then, Mr. Smith knew much more than he was willing to avow.
The remainder of Peter Taylor’s story, so far as it respects Mr. Smith,
all concurs to establish the same fact. Mr. Smith’s anxious inquiries
for the _news_; for what was passing; for what was _said_, about General
Wilkinson; the charge to Peter Taylor not to go to a tavern, lest he
should be sifted with questions; and, finally, the letter, professedly to
Blannerhasset, but enclosing one to Mr. Burr, all combine to exhibit a
state of mind agitated and alarmed, studious of concealment, and fearful
of detection.
Above all, consider the inquiry, what was _said_ about General Wilkinson.
What could have associated, in a mind utterly ignorant of all Burr’s
projects, inquiries about Wilkinson with the then situation of Burr and
Blannerhasset? Recollect the passage of the ciphered letter: “Already has
the contractor orders to furnish six months’ provisions at the points
Wilkinson shall name; this shall be used only at the last moment, and
then under proper injunctions.”
Mr. Smith has, at one time, denied all the material facts attested by
Peter Taylor; and he attempted to disgrace his character; so little has
he been borne out by his own evidence, now produced, that he formally
admits the very facts he had denied. The same course has been pursued
with regard to Colonel James Taylor’s testimony. Sir, this treatment of
the witnesses is not calculated to inspire confidence in the solidity
of Mr. Smith’s defence. Unfounded attacks upon the character of a
respectable witness, not only confirm, but aggravate the weight of his
testimony.
If, however, the testimony of Peter Taylor needed confirmation, it
would be found in the substance of the letter itself, of which he was
the bearer, and of the answer to that letter. To these two documents
I now ask the particular attention of the Senate. The letter is dated
23d October, 1806, and says: “I beg leave to inform you that we have,
in this quarter, various reports prejudicial to your character. It is
believed by many that your design is to dismember the Union; although I
do not believe that you have any such design, yet I must confess, from
the mystery and rapidity of your movements, that I have fears, let your
object be what it may, that the tranquillity of the country will be
interrupted, unless it be candidly disclosed, which I solicit, and to
which, I presume, you will have no objection.”
Now, what is the solicitude manifested in this letter? It is not so much
that Mr. Burr’s object should be declared, _not_ to be the dismemberment
of the Union. It asks for something which may be _told_, to prevent
the tranquillity of the country from being interrupted. And it very
explicitly intimates what must be _denied_.
It is an answer of a very peculiar kind which appears to be wanted; an
answer contained in the letter itself. A voucher is wanted to deny the
project for dismembering the Union; and to speak with certainty of the
ostensible object. This was the settlement of the Washita lands. Mr.
Smith, in one of his narratives, says that Burr had talked with him on
this subject in September before; but the purchase of the lands was not
then concluded. It was uncertain whether that could now be spoken of as
the professed purpose, and Mr. Smith’s letter was well adapted to obtain
that certainty.
Mr. Burr’s answer appears perfectly to have understood the object of
these inquiries. Much has been said by Mr. Smith about the apparent
_frankness_ and _candor_ of this letter, and on this document he relies,
with great emphasis, as a complete justification of all his subsequent
confidence in Mr. Burr. To me, sir, it bears a very different aspect.
Considering it in the light of an answer to the solicitude of a man
altogether unconscious of Mr. Burr’s real designs, and aware of the
extremely suspicious appearances in which the conduct of Mr. Burr was
involved, this answer appears to me calculated for any thing rather than
to restore confidence. To manifest its real character, let us attend to
some of its most remarkable passages. Mr. Burr says:
“If there exists any design to separate the Western from the
Eastern States, I am totally ignorant of it. I never harbored
or expressed any such intention to any one, nor did any person
ever intimate such design to me. Indeed, I have no conception
of any mode in which such a measure could be promoted, except
_by operating on the minds of the people_, and demonstrating
it to be their interest. I have never written or published a
line on this subject, nor ever expressed any other sentiments
than those which you have heard from me in public companies, at
Washington and elsewhere, _and in which I think you concurred_.”
At this passage there are the following notes by Mr. Smith:
“J. Smith has heard Colonel Burr and others say, that in fifty
or a hundred years, the Territory of the United States would
compose two distinct Governments.”
I return to the letter:
“I have no political view whatever. Those which I entertained
some months ago, and which were communicated to you, have been
abandoned.”
Here is another note by Mr. Smith:
“J. Smith presumes that Mr. Burr refers to an invitation to
settle in Tennessee, of which he heard him speak.”
The letter proceeds:
“Having bought of Colonel Lynch four hundred thousand acres
of land on the Washita, I propose to send thither, this fall,
a number of settlers--as many as will go and labor a certain
time, to be paid in land, and found in provisions for the time
they labor--perhaps one year. Mr. J. Breckinridge, Adair, and
Fowler, have separately told me that it was the strong desire
of the Administration that American settlers should go into
that quarter, and that I could not do a thing more grateful to
the Government. _I have some other views, which are personal,
merely, and which I shall have no objection to state to you
personally, but which I do not deem it necessary to publish. If
these projects could any way affect the interests of the United
States, it would be beneficially; yet, I acknowledge that no
public considerations have led me to this speculation, but
merely the interest and comfort of myself and my friends._”
And, finally, there is the following marginal admonition:
“It may be an unnecessary caution, but I never write for
publication.”
Thus you see, sir, that the design of separating the States is denied in
terms explicit, as Mr. Smith’s letter had desired; but, with how much
regard to truth, this volume of evidence at Richmond has sufficiently
proved. The purchase of the Washita lands is announced to have been
completed. Thus far, the answer is precisely such as the letter seemed
to ask; but all the rest is darkness and oblivion. The caution against
publication was itself not naturally suited to inspire confidence. It
seems to say, You may show this letter, but you must not publish it.
The other allusions are so obscure--so unintelligible--that Mr. Smith
has found it necessary to make them clear by explanatory notes. There
is a reference to former conversations on the subject of a separation
of the States, in which Mr. Smith is _reminded that he concurred_ with
the sentiment which Mr. Burr had expressed. Mr. Smith’s note intimates
that this refers to opinions about the separation of the Union in some
fifty or a hundred years. But, if Burr’s speculations in public companies
postponed to so distant a date the event, which he was projecting, to
Eaton, to the Morgans, to Blannerhasset, to McFarland, and Glover, he had
been urging the propriety of their accomplishment at a much earlier day.
And from the testimony of Colonel James Taylor, it would seem that the
concurrence of sentiment for which Mr. Burr refers to the consciousness
of Mr. Smith, extended no less to the practical projects than to the
speculative opinions of Burr--to the separation of the States within five
or two years rather than to the dismemberment of the next century. The
mode, says Mr. Burr, for promoting such a measure would be by operating
on the minds of the people, and demonstrating it to be their interest.
Now this was the very mode in which Mr. Burr and Blannerhasset under him
had been attempting to promote the measure. Burr had been so operating
at Cincinnati the year before this. And William McFarland at least had
persuaded, that Cincinnati was to be the capital of the Western empire.
He had been so operating all the way at least from Pittsburg, in August,
and until he left Cincinnati in September, only six weeks before these
letters were written. The _Querist_ was one of these instruments of the
_mode_ for operating upon the minds of the people. And when the _Querist_
first appeared, Mr. Smith had expressed his approbation of its contents.
Is not this the sort of concurrence to which Mr. Burr alludes rather
than that of speculating upon the destinies of a future age? The rest of
the letter is equally obscure. Mr. Burr’s abandonment of a project for
settling in Tennessee requires the explanation of a note from Mr. Smith;
and that note is conjectural. Mr. Burr has some other views, merely
personal, which he can only communicate _personally_. If they could
affect the interests of the United States, it would only be beneficially;
but they were prompted by no public considerations, but merely for the
interest and comfort of himself and his friends.
Mr. President, I ask again the attention of the Senate to this remarkable
sentence. Did Mr. Smith, on receiving the letter, understand this
sentence, or did he not? If he did, where is the whole defence which
he has now set up? If he did not, was this paragraph calculated to
inspire his confidence? Was it calculated to remove suspicions? Projects
which could only be _personally_ disclosed! Projects which might affect
the interests of the United States! Projects prompted by _no public_
considerations! but merely by personal interest for himself and _his
friends_! And was this to remove suspicion from the mind of a Senator
of the United States? Was this an answer to calm anxieties and restore
confidence? Is not the very language of it suspicious? Equivocal?
Ambiguous? I ask every member of this Senate to put the question to
himself. Had you been at that time in the midst of the scene of Burr’s
operations, and had you received such an answer to a letter of solicitous
inquiry, would it not have increased instead of allaying your alarm?
Would you not have seen in this paragraph a concealment suspicious in
itself--darkened still further by expressions of dangerous import and of
doubtful legality? Strange indeed must be the texture of that mind to
which this answer could restore unqualified confidence in the writer!
But, sir, if Mr. Smith had seen nothing in this letter to startle
confidence, instead of composing it, was there nothing in the course
of public events at that time, which might and should have aroused him
to more than suspicion? Mr. Burr’s letter was dated on the 26th of
October; within ten days from that time, that is, on the 5th of November
following, the District Attorney of the United States in Kentucky filed
a complaint against Mr. Burr, for a violation of the laws of the United
States, in setting on foot an expedition against Mexico, which complaint
I beg leave to read--
“J. H. Daviess,[52] attorney for the said United States, in and
for said district, upon his corporal oath, doth depose and say,
that the deponent is informed, and doth verily believe, that
a certain Aaron Burr, Esq., late Vice President of the United
States, for several said months past hath been and is now
engaged in preparing and setting on foot, and in providing and
preparing the means for a military expedition and enterprise
within this district, for the purpose of descending the Ohio
and Mississippi therewith, and making war upon the subjects of
the King of Spain, who are now in a state of peace with the
people of the United States, to wit: on the province of Mexico,
on the westwardly side of Louisiana, which appertain and belong
to the King of Spain, a European prince, with whom the United
States are at peace.
“And said deponent further saith, that he is informed, and
fully believes, that the above charge can, and will be fully
substantiated by evidence, provided this honorable court will
grant compulsory process to bring in witnesses to testify
thereto.
“And this deponent further saith, that he is informed, and
verily believes, that the agents and emissaries of the said
Burr, have purchased up, and are continuing to purchase large
stores of provisions as if for an army, while the said Burr
seems to conceal in great mystery, from the people at large,
his purposes and projects: and while the minds of the good
people of this district seem agitated with the current rumor,
that a military expedition against some neighboring power is
preparing by said Aaron Burr.
“Wherefore, said attorney, on behalf of said United States,
prays that due process issue to compel the personal appearance
of the said Aaron Burr in this court, and also of such
witnesses as may be necessary in behalf of the said United
States; and that this honorable court will duly recognize the
said Aaron Burr, to answer such charges as may be preferred
against him in the premises. And in the mean time, that he
desist and refrain from all further preparation and proceeding
in the said armament within the said United States, or the
territories or dependencies thereof.”
It will be remembered that on this complaint a grand jury was summoned,
and on the 8th of November discharged, because Davis Floyd, whom the
attorney deemed a material witness, and whom we now know to have been
one of Mr. Burr’s principal associates, was absent. We all know what
the effect of this transaction was here. Certainly not of inspiring
_confidence_ in those who were _ignorant_ of Mr. Burr’s real designs.
No, sir! The confidence which this abortive attempt to bring Mr. Burr to
justice inspired, was in himself and associates. He wrote immediately to
Blannerhasset not to apprehend any danger from this prosecution, (which
his friends then and so long after called a persecution,) but _delay_
in the settlement of the lands; and one fortnight after--that is on the
twenty-third day of November--we see him again at Cincinnati, making the
promised personal and confidential communication to Mr. Smith, which
he had not dared in a letter of 26th October to commit to paper--and
no wonder; for it is a complete and unquestionable acknowledgment of
the identical crime for which Mr. Burr had been summoned into court
at Frankfort, not twenty days before, and discharged merely from the
failure of a witness to attend. But it is not merely a confession of
_that_ guilt, it imports much more; and the very terms used by Mr.
Smith, relating it, in his affidavit of 6th of June, 1807, show that
he understood it as importing more. Mr. Burr tells Mr. Smith, that his
design “is not dishonorable, or _inimical_ to this Government;” he
“repeated that his object was _not hostile to the people of the United
States or dishonorable to himself_,” and that he would be “the _best
neighbor this country ever had_.” Whether the design was honorable or
dishonorable, Mr. Smith should have judged for himself. That it was not
inimical to this Government, there was little reason for him to believe,
when coupled with those boiling resentments which overflowed from the
lips of Mr. Burr in the very act of making this acknowledgment: “In this
Government he had been persecuted, shamefully persecuted, and he was
sorry to say that in it all private confidence between man and man seemed
to be nearly destroyed.” And in this state of temper, Mr. Burr “ventured
to tell Mr. Smith that if there should be war between the United States
and Spain, he, _Burr_, should _head a corps of volunteers, and be the
first to march into the Mexican provinces_; if peace should be preserved,
which he did not expect, he should settle his Washita lands, and make
society as pleasant as possible.”
And this is the communication which _added strength_ to Mr. Smith’s
confidence in Mr. Burr! This is the communication upon which Mr. Smith
engaged his two sons to go as Burr’s associates!
The attack upon Mexico was to be _in case_ war should take place
between Spain and the United States. But is it possible, sir, that a
man of Mr. Smith’s understanding should _at that time_, and under these
circumstances, have given an instant of credit to that shallow pretence?
If Mr. Swartwout, one of Burr’s acknowledged associates, was ashamed of
pretending to rely on this tale of contingent war, and frankly told the
grand jury at Richmond that they were to attack Mexico, to be sure, in
case of a war with Spain; but if there had been _no_ war _he_ was ready
to forget the law of the United States against such expeditions. If
Commodore Truxton, a private citizen, smarting under the injuries which
he conceived he had suffered from the Administration, even in July,
while the project was but in prospect, and not in actual execution, made
his first and emphatical question, whether the Government of the United
States was acquainted with it, and on being informed that they were not,
instantly refused to have any concern with it; let me ask, whether in the
last days of November, while Burr was persevering in his preparations,
after having been brought before a judicial court upon the very charge,
and dismissed solely because a witness was absent, _a Senator of the
United States_, receiving this communication from Burr himself, could
possibly be the dupe of this pretence? Whether his first question ought
not to have been that of Commodore Truxton: Is the Executive of the
United States informed of your designs? Is it possible, sir, that this
disclosure of the intended Mexican invasion could confirm the confidence
of Mr. Smith, when it was the very thing for which the district attorney
not three weeks before had entered the complaint against Mr. Burr, before
the court of the United States competent to try that offence? Is it
possible that Mr. Burr’s confession of his guilt should have been the
confirmation of Mr. Smith’s confidence? Yes, sir; so far as relates to
the misdemeanor--to Mr. Smith’s participation in the project for invading
Mexico--his own affidavit on the 6th of January, 1807, is evidence,
which, in my mind, nothing can control. His engagement of his two sons to
Mr. Burr, admits neither of denial nor of jurisdiction.
About ten days after this, on the second and third of December, Mr. Smith
goes to Cynthiana, Frankfort, and Lexington, to purchase provisions, and
to sell bills of exchange. Here he accidentally sees again Mr. Burr. He
finds that Mr. Burr is for the second time charged, and now before a
grand jury, with that very offence of preparing an expedition against
Mexico, which in his confidential communication to Mr. Smith he had
explicitly avowed. And Mr. Smith, by the testimony of three of his own
witnesses, hurries away from the scene to avoid being subpœnaed as a
witness, declaring that he knows nothing on the subject that could either
criminate or justify Mr. Burr. The first of these witnesses is Kelly,
Mr. Smith’s confidential agent and storekeeper at Cynthiana; of whose
character as a man of uprightness and veracity, the most respectable
attestations are produced. After stating the motive of Mr. Smith’s going
to Cynthiana, and thence to Lexington, Kelly’s deposition, produced there
by Mr. Smith himself, proceeds thus:
“He returned and informed me that on his arrival at Lexington
he understood that the principal men with whom he wished to
transact business, were at Frankfort; that he was also informed
that a prosecution, the second time, was commenced against
Colonel Burr, and he (Smith) was told, that if it was known
he was in the State, he would be subpœnaed as a witness; that
he told his informers he would not put them to the trouble
to summon him, if he had a fresh horse he would go on there
immediately; finding he could not see the men he wished to
see, he started for Frankfort; that on his arrival there he
inquired for Major Morrison, I think he said, in two or three
public houses, but could not find him; that he was informed
the investigation into Burr’s conduct before the grand jury
was delayed for want of General Adair, who was said to be a
principal witness against him, and that in all probability
proceedings would be stayed for several days, and as he (Smith)
could not be detained so long from his business, particularly
as he _knew nothing that would either criminate or exculpate
Colonel Burr_; that if his testimony could be of any benefit
either way he would have stayed with pleasure, but as _he
was entirely ignorant of any of Burr’s political views_, he
conceived to stay there for no purpose would be doing injustice
to his private as well as public concerns, and therefore, as he
was not summoned, he started away early next morning.”
Mr. Jourdan’s deposition, after relating Mr. Smith’s applications to him
respecting the bills of exchange, says--
“The conversation then turned on the pending trial of Colonel
Burr; and I mentioned that I had been called on as a witness;
and observed that Burr had also been at your house; and was
it known that you were in this place, that you would also be
called on. You said you was willing; _that you knew nothing
of the business_; but, as you could not get your business
accomplished here, that if you had a fresh horse you would go
to see Major Morrison, and save them any trouble of subpœnaing
you.”
The deposition of Joseph Taylor is to the same effect; that Mr. Smith
denied all knowledge of any thing which could operate either for or
against Mr. Burr.
Now, sir, how was the fact? Was Mr. Smith thus ignorant? It seems to
me that he was not. The disclosure which on the 23d of November, he
himself has sworn Mr. Burr had made to him in confidence, was knowledge
of the most decisive character on the question before the grand jury;
was knowledge which, had Mr. Smith been even a private citizen, he was
bound in duty to have gone and related to them. Admitting that even Mr.
Smith could have believed that Burr intended the Mexican invasion only
in case a war should break out; still the preparations he was making
were unlawful; still he was guilty of the very charge made against him
then before the grand jury; and had confidentially avowed the object to
Mr. Smith. Had Mr. Smith gone before that grand jury, and told them,
from the lips of Mr. Burr, what the affidavit of 6th January, 1807,
declares upon oath; that grand jury, instead of dismissing Mr. Burr as
they did, with commendation and applause, would have been bound, with
the oath of God upon their consciences, to find a bill against him. The
confession of Mr. Burr unquestionably brought him within the operation
of the statute upon which he was prosecuted, and I cannot but attribute
to Mr. Smith’s studious avoidance of attending upon that grand jury,
all the unfortunate, and I may say calamitous consequences which have
befallen this nation, from the failure of bringing Burr to justice at
that time. Had he then been indicted, on Mr. Smith’s testimony alone, he
must have been convicted. The alarms, the agitations, the extraordinary
and irregular stretches of power at New Orleans, which have distressed
every free and patriotic heart, would have been needless; would have been
prevented. The progress of that pernicious enterprise would have been
arrested there. The whole judicial authority of the United States would
have been laid prostrate before the wiles of conspiracy. There would have
been no trial; no occasion for a trial at Richmond; treason would have
been nipped in the bud, and Mr. Smith himself would at this day have been
here, in the full enjoyment of his reputation, with his consciousness of
having rendered a service of the highest importance to his country. But,
sir, unfortunately for him; unfortunately for us; unfortunately for his
country, he had engaged his two sons to Mr. Burr. He could not testify
against Burr without condemning himself, and he shrunk from the presence
of the grand jury.
Ten days after this the President’s proclamation and Governor Tiffin’s
orders for the militia to be called out, both arrived on the same day,
the 13th of December, at Cincinnati; and from that time Mr. Smith’s
exertions to carry into effect the orders both of the General and State
Governments were characterized with great and extraordinary zeal. But
even then he writes to the Secretary at War a narrative not exactly
conformable to that afterwards contained in the answer to the committee;
in the answer Mr. Smith declares repeatedly that all his _doubts_ and
_suspicions_ about Mr. Burr had been removed by his open-hearted, candid
letter of 26th October. In the letter to the Secretary of War, he speaks
of himself as harboring so strong suspicions on Burr’s subsequent visit
to Cincinnati in November, as then to have _asked_ him _pointedly_ if
any object he had in view justified the suspicions that prevailed about
him, and that from Mr. Burr’s apparent candor in answering this question
he (Smith) entertained no doubt of him. Now, this apparent candor was
an acknowledgment of the very same undertaking which the President’s
proclamation called upon the people to suppress. The proclamation had no
reference to the part of Burr’s project which aimed at the dismemberment
of the Union--it was the intended invasion of Mexico, which it extended
the arm of the nation to restrain--the very expedition upon which Mr. S.
had engaged his two sons.
How was it possible that this disclosure of an unlawful design could have
restored the confidence and received the countenance of Mr. Smith? It
is this, with the circumstances attending it, and which I have noticed,
that render Mr. Smith himself the most material of all the witnesses
against him. The letter, I have shown, contained little to remove, and
much--very much--to excite suspicion. The avowal of the intended march
to Mexico was an avowal of guilt. Mr. Smith does not pretend that Mr.
Burr hinted to him that the design was approved by the Government.
The bitterness with which he spoke of the Government was surely, of
itself, an indication to the contrary. Did not Mr. Smith know that
this was an unlawful enterprise? Could he have been ignorant of this
before? The first prosecution in Kentucky must surely have given him
sufficient notice of that. Before he engaged his two sons, ought he
not to have inquired how the Washita settlement was to be made?--how
the same preparations could be transformed, at pleasure, from purposes
of war to purposes of agriculture?--how the same men and the same
things could possibly be applied to the invasion of one country and the
settlement of another?--by what magic they were to beat their swords
into ploughshares, and their spears into pruning-hooks? Even Peter
Taylor--the stupid Peter Taylor, as Mr. Smith has pronounced and his
counsel endeavored to prove him; even Peter Taylor--when Blannerhasset
attempted to engage _him_ for the Washita settlement, inquired what kind
of _seed_ they should carry with them; nor would he be satisfied with
Blannerhasset’s evasions of this question, but urged him with it until
he forced out the whole project--the Mexican empire--the royal diadem
of Mr. Burr--and the dismemberment of the American Union! Peter Taylor
was, indeed, as Mr. Smith says, a gardener. He certainly cannot, in
point of understanding, be compared with Mr. Smith; yet, even he could
bethink himself of the articles which would be suitable for his agency
in a settlement of lands; even he could discern the difference between
garden-seeds and gunpowder. And yet, Mr. Smith, a Senator of the United
States--a settler in a new country--a confidential and intimate friend of
Mr. Burr--engaged his two sons for an amphibious expedition of settlement
or war, without putting a single question to ascertain how these schemes
of contrariety could be reconciled together--without one single inquiry
which could lead to a colorable pretence of right for the warlike part
of the plan--preparations for war--levying of troops! Was a Senator of
the United States to wait for the President’s proclamation to learn
the unlawfulness or the danger to the liberties of the country of such
enterprises, undertaken without public authority? Was he yet to learn
that the power of making war and of raising soldiers has been deemed by
the people of this nation of such magnitude and danger that they would
not intrust them to the Executive authority, but have expressly and
cautiously reserved them exclusively to the representatives of the nation
assembled in Congress? And, until the declaration of war by Congress,
he surely knew that every preparation of expeditions to invade the
territories of a neighboring sovereign, was, even in the incipient stage
of beginning and setting on foot, in direct violation of the laws of the
land. The pretence that it was to be pursued only in case war should take
place, did not make it at all more lawful, but made it, if any thing,
more dangerous. Suppose, sir, that war had been declared, was it for
Aaron Burr to say who should _head_ corps of volunteers, or who should
be _the first_ to march into the Mexican provinces? Entertaining the
opinion that I do and then did of Mr. Burr, I should have considered it
as one of the greatest misfortunes which could have befallen the United
States, even if they were at war, to have had such a man as him at the
head of their armies. Nor can I consider it but as highly unbecoming in
a member of the National Legislature to have given him countenance in
this project of forcing himself upon the Government of the Union as the
General of an army for the invasion of Mexico. It was encouraging and
aiding a violation of the constitution in its vital principles; it was
setting an example more to be dreaded by the people of the Union than the
most formidable foreign war. And of all this Mr. Smith himself is the
self-accusing witness. All the other witnesses are but in confirmation
and aggravation of these decisive facts. Some of them indicate
circumstances of very strong suspicions that Mr. Smith’s participation
was much earlier and much deeper. Others strikingly demonstrate that he
was acting under a consciousness of unlawful engagements; and all concur
in producing upon my mind the conviction that this resolution ought to
pass.
Mr. President, I have discharged a painful obligation. No discussion
has ever devolved upon me, as a member of this body, in which I have
taken a part with more reluctance than in this. Until these transactions
occurred, there was perhaps not another member of the Senate in whose
integrity I more confided: and but for this, there is none whom I should
more readily take by the hand as a friend and a brother. I trust, sir,
that I feel as I ought for his personal situation on this occasion, as
well as for the interests and the feelings of his family. I am sensible,
and have never lost sight of what is due from me to him as members of
this Assembly. But there is also a duty to the character and reputation
of this body; a duty to the State whose representation on this floor
has been in part intrusted to him; and a duty to the whole nation whose
public servants we are. In the discharge of these duties, I have felt
myself compelled to submit these observations to the Senate, and with
these I shall conclude.
When Mr. ADAMS had concluded, on motion of Mr. GILES, the further
consideration of the subject was postponed until to-morrow.
The Senate resumed, as in Committee of the Whole, the consideration of
the amendments reported by the select committee to the bill, entitled
“An act concerning courts martial and courts of inquiry;” and, after
progress, adjourned.
SATURDAY, April 9.
_Case of John Smith._
Agreeably to the order of the day, the Senate took up the resolution
reported by the committee, appointed on the 7th of November last, to
consider the subject, to wit:
_Resolved_, That John Smith, a Senator from the State of Ohio,
by his participation in the conspiracy of Aaron Burr, against
the peace, union, and liberties of the people of the United
States, has been guilty of conduct incompatible with his duty
and station as a Senator of the United States; and that he be
therefor, and hereby is, expelled from the Senate of the United
States.
Mr. HILLHOUSE.--The cause before the Senate has been so fully heard,
and so ably discussed, that it was my intention to have given a silent
vote, had not the gentleman from Massachusetts (Mr. ADAMS) declared in
so pointed a manner that even voting on the resolution would sanction
the report of the committee which accompanied it; a report containing
principles which I can never sanction by my vote; principles which go
to discredit all our criminal tribunals, and those rules of proceeding
and of evidence which govern the decisions of courts; rules which
alone can shield innocence, and protect an accused individual against
a Governmental prosecution, or the overwhelming power of a formidable
combination of individuals, determined on his destruction--principles
which would plant a dagger in the bosom of civil liberty.
I do, most fully, agree with the gentleman from Massachusetts, that the
Senate for the purpose of exercising their censorial power of expulsion,
have cognizance of the case before us. That, for that purpose, they
have cognizance of all crimes and offences, and are not bound to wait
for the proceedings of the courts of common law. I further admit, that
the same degree of evidence is not necessary to justify an expulsion of
a member, as to convict him before a court and jury. For example, on a
charge of treason, two witnesses are necessary to a conviction. On such
a charge, I should not hesitate to expel a member on the testimony of a
single witness of irreproachable character. What I insist on is, that the
evidence admitted must be legal evidence, and such as would be admissible
in a court of law; not _ex parte_ depositions, hearsay evidence, or
surmises founded on mere conjecture or suspicion.
Were I, in deciding this case, to be governed by political or party
considerations, I should incline to vote in favor of the resolution on
your table. But, when we reflect, that agreeing to the resolution is to
disrobe a Senator of his honor, to doom a fellow-citizen, an amiable
family, and an innocent posterity, to perpetual infamy and disgrace,
party and political considerations ought not, cannot influence the
decision. Impartial justice and testimony, alone, must govern, and I
flatter myself will govern, every member of this Senate in the vote he is
about to give.
Elias Glover, having volunteered in giving his deposition, when no
accusation existed, was to be considered rather an accuser than a
witness. An _ex parte_ deposition, taken under such circumstances, could
not by me be considered as evidence, on a question of expulsion, had not
the accused member and his counsel agreed to its admission, by which I
was bound to consider it as evidence. And in my mind it is so material,
that if the force of it had been destroyed by counter-testimony, I
must have voted for the resolution before us. But I have listened with
pleasure, for it always gives me pleasure when a person accused can
prove his innocence, to the evidence adduced, which has completely done
away the force of Glover’s deposition. The gentleman from Massachusetts
admits, and every member who has spoken seems to agree, that no reliance
can be placed upon it. I shall therefore lay that out of the case; as
also the other evidence attempting a direct proof of a participation in
Aaron Burr’s conspiracy, as in this also I fully agree with the gentleman
from Massachusetts that it amounts to very little. It is the conduct
and confessions of Mr. Smith by which his guilt is endeavored to be
established; and when such talents and eloquence as are possessed by the
gentleman from Massachusetts are brought to bear upon, and are urged with
so much energy and force against an individual accused of being concerned
in plots and conspiracies against the Government of his country, charges
peculiarly calculated to excite jealousy and suspicion, innocence itself
could hardly expect to escape. After hearing his able and eloquent
argument, I was much gratified by the motion of the gentleman from
Virginia (Mr. GILES) to postpone. I wished for one night to consider the
subject; I was not then prepared to make a reply.
The gentleman from Massachusetts has relied on the conversations,
confessions, and conduct of Mr. Smith to prove his guilt, but he does not
take the whole conversation and confession together; and it is a rule
of law, always admitted, and never to be departed from, that when the
confession of the party is taken, the whole must be taken together; and
not to make out proof of guilt, by selecting different detached parts,
leaving out other parts that go to explain what otherwise might appear
criminal. A strict adherence to this rule will leave little of evidence,
or even ground of suspicion of guilt in this case. If all Mr. Smith’s
conversations and confessions are taken together, there can remain little
doubt of his innocence.
The first circumstance in Mr. Smith’s conduct which is laid hold on,
and on which the gentleman from Massachusetts has built his argument to
establish his guilt, is, that Mr. Smith has confessed that in September,
1806, he gave Aaron Burr a hospitable reception under his roof, for
four or five days; that he afterwards saw him again at Cincinnati and
in Kentucky. What was there suspicious in all this? Who was Aaron
Burr? And what was the situation of Mr. Smith in relation to him, that
extending to him the rights of hospitality should excite suspicion, and
fix the imputation of crime? Aaron Burr was a man who had stood high in
the confidence of the people of the United States--a man who had been
associated with the present Chief Magistrate, and had received an equal
number of the votes of the electors for President--a man who had been by
the voice of his country placed in the second office in the nation--a man
who for four years filled the chair you now occupy, and presided over
this Senate with impartiality and dignity; and in a manner to command
universal approbation. So great was the ascendency which he had acquired
in this body, that towards the close of his term of service, a bill was
passed granting to him for life the privilege of sending and receiving
letters and packets through the mail free of postage, a privilege which
had never been extended to any but a President of the United States
and Mrs. Washington. So great was the confidence of a majority of the
Senate in Aaron Burr, as to produce an unusual zeal, no doubt a laudable
zeal, for passing the bill. It was pressed in an unusual manner; and
we were called to a decision when he was himself in the chair; he who
could almost look down opposition. Under such circumstances it was
painful to oppose the bill; and nothing but a strong sense of duty
could have impelled any one to make opposition. The yeas and nays on
the Journal[53] will show how great a portion of the Senate, of which
number was Mr. Smith, had so high a confidence in Mr. Burr. At that time
I had no more suspicion than the majority of Colonel Burr’s having any
treasonable designs; though in opposition to the bill, I did state it
as a possible case, that a Vice President, ambitious of rising to the
first office in the nation, and meeting with disappointment, might become
disaffected, and engage in treasonable plots to overturn the Government,
and avail himself of his privilege and the mail to circulate his treason
into every corner of the Union. The bill was arrested in the House of
Representatives.
The Senate also adopted the following:
“_Resolved, unanimously_, That the thanks of the Senate be
presented to Aaron Burr, in testimony of the impartiality,
dignity, and ability with which he has presided over their
deliberations; and of their entire approbation of his conduct,
in the discharge of the arduous and important duties assigned
him as President of the Senate.”
I was happy on this occasion to unite in what I considered a just tribute
of applause for his conduct as President of the Senate.
This was the close of Aaron Burr’s political career; this was the last
public office he sustained in the nation, and from that time, till Mr.
S. received the pencilled note asking for the hospitality of his house
for a few days, it was not publicly known that he had done any thing to
take off the impression which his official conduct as Vice President, and
those public acts of the Senate, had made. Under these circumstances,
and considering the intimacy and friendship which had been contracted
while they were associated in the same political body, the Senate of the
United States, what could Mr. Smith do? What did his early impressions,
all the habits of his life, and the honorable feelings and sentiments
of a gentleman, imperiously demand of him to do? The answer will be
anticipated; he could no otherwise than extend to him the rights of
hospitality, receive and treat him as a gentleman. Had he been an entire
stranger he could not have done otherwise, without being considered as
having disgraced his native State, for he was born in Virginia, so famed
for hospitality, not only to friends, but to strangers. Had Mr. S. done
otherwise than he did, would he not have been disowned as unworthy to
be called a Virginian? This act of hospitality and politeness is now
considered as a crime, which is to fix indelible disgrace on Mr. S. and
his family.
The next thing relied on is, that Mr. S. being informed of the projects
and schemes of Mr. Burr, concealed them. The gentleman from Massachusetts
has told us that, if Mr. S. had come forward and testified before
the grand jury of Kentucky, Burr would have been convicted, and his
treasonable plot, which has done so much mischief, arrested. The
disclosure which Mr. S. states to have been made to him, (and there is
no proof on the subject but what comes from himself) is as follows--viz:
Colonel Burr said to him, “Mr. Smith, my object in a few months will
be disclosed; you will not find it dishonorable or inimical to this
Government. I feel superior to the mean artifices which are ascribed
to me; calumniators I do not notice, for as fast as you put one down,
another will rise up. This much I will venture to tell you, if there
should be war between the United States and Spain, I shall head a corps
of volunteers, and be the first to march into the Mexican provinces;
if peace should be preserved, which I do not expect, I shall settle my
Washita lands, and make society as pleasant about me as possible.” Now
I ask, Mr. President, was there any thing criminal, was there any thing
unlawful in all this? Was there any thing to excite suspicion that Aaron
Burr was engaged in a treasonable plot to sever the Union, or invade the
territory of a friendly power, in amity with the United States? Was it
not, on the contrary, expressly said not to be dishonorable or inimical
to the Government? Was there any reason to suppose our Government would
not, in the event of a war with Spain, accept the services of a corps of
volunteers; when the policy seems to have been to rely on volunteers; and
laws have frequently passed calling for, and authorizing the employment
of such force? The evidence of Mr. S., had he appeared before the grand
jury, instead of criminating Colonel Burr, must have operated in his
favor; for to have headed a corps of volunteers under such circumstances
would have been laudable. Has Mr. S. ever manifested any unwillingness
to disclose what he knew of Burr’s projects? On the contrary, has he not
always done it freely, when there was a fit occasion, not only to his
friends but the officers of Government?
But the gentleman from Massachusetts has compared the case of Mr. Smith
with that of Commodore Truxton, and stated that upon Burr’s disclosing
his plans to the latter, he was asked this all-important question--“Is
the Executive of the United States privy to or concerned in the project?”
This, says he, ought to have been the conduct of Mr. Smith; this would
have been his conduct if he had been an innocent and an honest man.
I little thought that Commodore Truxton’s deposition would have been
resorted to in this case; a deposition which had not been read, a
deposition not taken on the trial in the presence of Mr. Smith, nor in
any way relating to his case. It must be an uncommon zeal that could
have induced any one, possessing the legal knowledge of the gentleman
from Massachusetts, to have resorted to that as evidence. But, sir,
the answer to this is plain. Mr. Burr did not go as far with Mr. Smith
as with Commodore Truxton, otherwise Mr. Smith would probably have
asked him the same question. But so much reliance having been had on
Commodore Truxton’s deposition to prove Mr. Smith’s guilt, on the score
of omissions, as well as of what he has done, I must be permitted to read
a part of that deposition: it is in these words, viz:
“About the beginning of the winter of 1805-6, Colonel Burr
returned from the Western country and came to Philadelphia. He
frequently in conversation mentioned to me certain speculations
in Western lands. These conversations were uninteresting to
me, and I did not pay much attention to them. Colonel Burr
requested me to get the Navy of the United States out of
my head, as he had something in view, both honorable and
profitable, which he wished to propose to me. I considered this
as nothing more than a desire to get me interested in land
speculations. These conversations were frequently repeated; and
some time in the month of July, 1806, Colonel Burr observed
that he wished to see me unwedded from the Navy of the United
States, and not to think any more of those men at Washington.
He observed that he wished to see or to make me (I do not
recollect which) admiral; for he contemplated an expedition
into Mexico, in the event of a war with Spain, which he thought
inevitable. He asked me if the Havana could not be easily taken
in the event of a war. I told him that it would require the
co-operation of a naval force. Mr. Burr observed, that might be
obtained. He pursued the inquiry as to Carthagena and La Vera
Cruz; what personal knowledge I had of those places, and what
would be the best mode of attacking by sea and land. I gave my
opinion very freely. Mr. Burr then asked me, if I would take
the command of a naval expedition. I asked him if the Executive
of the United States was privy to or concerned in the project.
He answered me emphatically, that they were not. I asked him
that question because the Executive had been charged with a
knowledge of Miranda’s expedition. I told Colonel Burr that I
would have nothing to do with it; that Miranda’s project had
been intimated to me, and that I had declined any agency in
those affairs. Mr. Burr observed that, in the event of a war,
he intended to establish an independent Government in Mexico;
that Wilkinson, the Army, and many officers of the Navy, would
join. I replied, that I could not see how any of the officers
of the United States could join. He said that Gen. Wilkinson
had projected the expedition, and that he himself had matured
it; that many greater men than Wilkinson were concerned (or
would join); and thousands to the westward.”
Mr. President, notwithstanding Colonel Burr had gone much farther in
communicating his plans and projects to Commodore Truxton than he had
done to Mr. Smith, and notwithstanding those insinuations of weaning
him from the Navy, forgetting those men at Washington, &c.,--which must
have excited suspicion in the mind of a man of Commodore Truxton’s
discernment, that Colonel Burr’s project was unlawful, and not known to
or approved by the Government--yet Commodore Truxton, in whose honor
and integrity I have the highest confidence, did not put the question
which the gentleman from Massachusetts relies on so much, and approves
so highly, as evincing his integrity; and for not asking which Mr. Smith
is to be suspected of a participation in guilt. It was when Colonel Burr
asked Commodore Truxton directly if he would take the command of a naval
expedition, and not till then, that he put the question. Had Colonel Burr
asked Mr. Smith to engage supplies of provisions, gunboats, arms or men,
for his expedition, then, and not till then, could it be expected that
Mr. Smith should have asked such a question; so far from saying any thing
to excite Mr. Smith’s suspicions, Colonel Burr had expressly declared
his object was not dishonorable or inimical to this Government. That
Commodore Truxton was dissatisfied with the Administration appears by
his answer to a question of Mr. McRae in the same deposition, viz: “Were
the remarks which he made on your relation to the Navy, calculated to
fill your bosom with resentment against the Government? A. My bosom was
already full enough, but certainly Colonel Burr spoke in concert with my
feelings.”
General Eaton’s deposition has been introduced under like circumstances,
and for the same purpose as that of Commodore Truxton. He testifies that:
“During the winter of 1805-’6, I cannot be positive as to the
distinct point of time, yet during that winter at the city of
Washington, Colonel Burr signified that he was organizing a
secret expedition, to be moved against the Spanish provinces on
the south-western frontiers of the United States, I understood;
under the authority of the General Government. From our
existing controversies with Spain, and from the tenor of the
President’s Address to both Houses of Congress, a conclusion
was naturally drawn, that war with that country was inevitable.
I had then just returned from the coast of Africa; and having
been for many years employed on our own frontiers, and on a
foreign coast still more barbarous and obscure, I knew not the
extent of the reputation which Colonel Burr sustained in the
consideration of his country. The distinguished rank which he
had held in society, and the strong marks of confidence which
he had received from his fellow-citizens, gave me no right to
doubt of his patriotism. As a military character, I had been
made acquainted with him, but not personally; and I knew none
in the United States in whom a soldier might more surely have
confided his honor, than in Colonel Burr. In case of enmity to
this country, from whatever quarter it might come, I thought
it my duty to obey so honorable a call as was proposed to me.
Under impressions like these, I did engage to embark in the
enterprise, and did pledge my faith to Colonel Burr. At several
interviews, it appeared to be the intention of Colonel Burr to
instruct me by maps and other documents, of the feasibility
of penetrating to Mexico. At length, from certain indistinct
expressions and innuendoes, I admitted a suspicion that Colonel
Burr had other objects. He used strong expressions of reproach
against the Administration of the General Government; accused
them of want of character, want of energy, want of gratitude.
He seemed desirous of irritating my resentment by reiterating
certain injurious strictures cast upon me on the floor of
Congress, on certain transactions on the coast of Africa,
and by dilating on the injuries which I had sustained from
the delays in adjusting my account, for moneys advanced for
the United States; and talked of pointing out to me modes
of honorable indemnity. I will not conceal here that Colonel
Burr had good grounds to believe me disaffected towards the
Government.”
Here, Mr. President, we find that General Eaton also was deceived, so
completely deceived as to engage himself in the enterprise. Here is also
evidence of the estimation in which Aaron Burr was held at Washington,
the seat of the General Government, where Congress were assembled, and
Mr. Smith was attending as a member of the Senate, the forepart of the
year 1806, the very year when Mr. Smith is to be suspected of a crime,
for extending to Colonel Burr the rights of hospitality: nor does General
Eaton suspect the views and projects of Colonel Burr to be unlawful or
improper, until he began to use strong expressions of reproach against
the Administration. General Eaton was also a man dissatisfied with the
Administration.
It is asked how it was possible for Colonel Burr to have been so long
with Mr. Smith and not have disclosed to him his plans, as he had done
to others. The reason is obvious; Commodore Truxton was dissatisfied
with the Government, and full of resentment; he was, therefore, the
man most likely for Aaron Burr to apply to, expecting, no doubt, to
engage him in his projects; to him he would be likely to communicate
his sentiments and feelings with freedom. Far otherwise was the case of
Mr. Smith. He was enjoying the sunshine of the Government; he was going
on in the full tide of prosperity; his fellow-citizens had bestowed on
him the highest honors in their gift. He was a Senator of the United
States; the Administration had extended to him their patronage and favor,
by giving him contracts for supplying the army, and building gunboats,
lucrative employments. Aaron Burr could not expect to engage this man
in any treasonable plot against the Government, until he should have
made him willing to sacrifice all his honors and all his prospects; and
to make the communication without engaging him, was to defeat all his
prospects; knowing that Mr. Smith could have no possible wish for a
change, he would be the last to whom he would dare to make a disclosure
of his projects. There were reasons, and strong reasons, why he should
wish to preserve the confidence of Mr. Smith, which made it important to
him to be on good terms with him, so long as he was attempting to blind
the eyes of the people, and make them believe he was acting in concert
with the Government; to do which, there could not have been a more ready
expedient than to take up his lodgings at the house of the contractor for
the army of the United States, and to appear to possess his confidence.
All his art, all his address, therefore, would be made use of to deceive
Mr. Smith, and make him believe his views and projects were fair and
honorable. This will fully explain the appearance of confidence which
seems to have existed between Mr. Smith and Colonel Burr, as well as
their correspondence, previous to the President’s proclamation.
The gentleman from Massachusetts thinks the story about the settlement
of the Washita lands so ridiculous and the disguise so thin, that Mr.
Smith must have seen through it, and known that Aaron Burr’s projects
were unlawful; and from that circumstance draws presumption of guilt. Is
it surprising that Mr. Smith in his situation, and with the information
he possessed, should believe this story, when a gentleman of Commodore
Truxton’s discernment, and after having had a much more full development
of Colonel Burr’s views and projects, believed it, and which in his
deposition he affirms to be the fact? In answer to the following
question, put by Colonel Burr, “had you reason to doubt my intention to
settle lands?” Commodore Truxton answered, “If there was no war, I took
it for granted that was your intention.” Nor is it so astonishing as the
gentleman seems to think it, that Mr. Smith should consent to let his
two sons go with Colonel Burr. It is the wish of every parent to see his
children well established; and what is more profitable, or promises a
more advantageous and certain establishment, than the settlement of new
lands? People are generally induced very readily to believe what they
wish, and is it at all surprising that Mr. Smith should be easily induced
to think well of a project which was proposed to benefit his own sons?
Surely his participation in Aaron Burr’s treason cannot be presumed from
such circumstances.
The conduct of Mr. Smith from the first moment that official information
was given to the people of the United States, that Aaron Burr’s projects
were treasonable or unlawful, was such as, instead of exciting suspicion
of his being an accomplice, merits the applause of his country. Not like
a timid traitor, affrighted at the rustling of a leaf, did he endeavor to
conceal the intercourse and correspondence between him and Aaron Burr; or
like a bold traitor attempt to defeat the measures adopted to counteract
the project and arrest the culprits; or to paralyze exertion by casting
ridicule upon them, as did that prime patriot Glover, the accuser of Mr.
Smith? No, sir, the day after the President’s proclamation arrived, he
writes a letter to the Secretary of War informing him of the substance of
Aaron Burr’s communication to him. He finds that the militia called into
service on this occasion, were destitute of arms, and unable to obtain
them from the public stores of the United States, though application had
been made for that purpose by the commanding officer; and that without
arms they could render no service. He goes in the night to the keeper of
the arms, and endeavors to persuade him to deliver them out, who still
refused, though shown the President’s proclamation, without an order from
the Secretary at War; fearing he might lose his office for acting without
orders. Under these circumstances, this same John Smith, charged with
being an associate of Aaron Burr in this very treason, pledged his own
private obligations for ten thousand dollars to indemnify the officer
for delivering out the arms. This was done, not after Aaron Burr was
arrested, or there was a prospect of the project’s being defeated; but
immediately, on the first alarm excited by the President’s proclamation,
and the spirited and patriotic exertions of the State of Ohio.
The gunboats which Mr. Smith was building, and which his accusers have
intimated were intended for Colonel Burr, were afterwards carried down
the river to New Orleans and delivered to the order of General Wilkinson;
and all the provisions purchased by Mr. Smith appear to have been
fairly and promptly delivered to our army; not a man--not a musket--not
a barrel of flour--not a single article of provisions of any kind--or
any thing that could aid or comfort Colonel Burr in his expedition,
has ever been furnished to him or any of his agents. How then has Mr.
Smith participated in the treason of Aaron Burr? I find no evidence
of the fact. I can discern no reasonable ground to suspect any such
participation.
The testimony of Colonel Taylor, whom I deem a man of honor and truth,
furnishes one other ground from which a presumption is attempted to be
drawn to implicate Mr. Smith. He says that in conversing with Mr. Smith
about certain political publications in a newspaper, signed the Querist,
in which a division of the Union and a separation of the Western from
the Atlantic States was advocated, he understood Mr. Smith to advance
those sentiments as his own. Mr. Smith says he only described them as
the sentiments of the writer. Suppose Colonel Taylor’s recollection to
be correct, what crime was there in advancing mere speculative opinions,
or expressing his sentiments on that or any other subject, provided he
violated no law. Are we not in a free country, in which it is lawful to
speculate on the science of government as well as any other? If that
privilege be denied, ours will no longer deserve the name of a free
country. But is it not possible that Colonel Taylor may be mistaken?
How often do we find conversations which take place among friends
misunderstood and incorrectly stated! Every day’s experience shows us
that even in public debate, in this Senate, the observations of gentlemen
are so misstated as to require explanation. But Dr. Sellman’s deposition
removes all doubt; he says, and he is admitted to be a man of good
character, that he understood Mr. Smith only to have repeated, not his
own sentiments, but those of the Querist. Dr. Sellman testifies:
“The first persons I approached were Mr. John Smith and Colonel
James Taylor. After attending some time to the conversation,
I noticed a reference was occasionally made to a publication
or publications that had appeared in the Marietta paper. For
some time I was at a loss to determine whether those gentlemen
were expressing their own opinions, or those contained in that
publication, for I was not present at the commencement of the
conversation, though it did appear to me to be a detail of the
opinions set forth in that publication. As it is now impressed
on my mind, I believe, to more fully satisfy myself, I asked a
question. Nor can I perfectly remember, whether I intended the
question particularly for Mr. Smith or both of the gentlemen,
but believe it was intended for Mr. Smith. Do you expect or
apprehend an early separation of the Union? To which Mr. Smith
replied, not in my lifetime; and I hope and pray to God I may
never live to see it, whether it takes place sooner or later.”
Here can be no mistake; so far from engaging in a treasonable plot to
sever the Union, he deprecated such an event in the most solemn manner.
Where then is the evidence whereon we can ground so important a vote as
that which shall adopt the resolution on your table? A vote which is to
disrobe a Senator of his office and of his honor? Nothing but jealousy,
that jealousy which frequently attaches itself to a charge of treason
and conspiracy, and must in this case have taken hold of the mind of the
gentleman from Massachusetts, could have induced a belief that there was
evidence to prove on Mr. Smith a participation in the conspiracy of Aaron
Burr. That master of the human heart, Shakspeare, says--
“----Trifles, light as air,
Are, to the jealous, confirmations strong
As proofs of holy writ.”
The truth of this is remarkably verified in the case before us. Is there
not some reasons to apprehend that there has been too great a disposition
to convert suspicion into proof? Ought we not to be on our guard when
it is proved that there has been a powerful combination of men, calling
themselves a republican society, to ruin Mr. Smith, the individuals of
which, when called before a magistrate to testify, declare that they
are bound to secrecy by a solemn obligation to the society, which is
paramount to their oath, when sworn as witnesses, and which will not
admit of their disclosing any facts, or their proceedings, any farther
than they are permitted to be made public by the society? And in sundry
of the depositions on your table they have accordingly refused to answer
questions, and in some instances to testify at all. Such a society
disgraces the name of Republican, by acting on principles tyrannical and
oppressive.
Mr. GILES.--Mr. President: I am called upon as a member of this Senate to
pronounce an opinion upon the following resolution:
“_Resolved_, That John Smith, a Senator from the State of Ohio,
by his participation in the conspiracy of Aaron Burr, against
the peace, union, and liberties of the people of the United
States, has been guilty of conduct incompatible with his duty
and station as a Senator of the United States, and that he be
therefor, and hereby is, expelled from the Senate of the United
States.”
A declaration upon this subject ought not to be made but upon the most
attentive examination of the evidence produced in the case, and the
most mature deliberation thereupon. The sentence to be pronounced is
important to the justice of the United States; but more particularly so
to the reputation of the person accused; it will have also an inseparable
influence upon that of his family. To him and them its effects are
all-important. The resolution solemnly and unequivocally asserts, that
John Smith, &c., participated in the conspiracy of Aaron Burr. Before
I can make this assertion, I must have some evidence of the fact. I
must acknowledge, that upon the most attentive examination of all the
papers, and the most respectful attention to all the arguments in the
case, I have not been able to discover any satisfactory evidence of that
fact. Yesterday I paid great attention to the eloquent, dignified and
candid observations of the gentleman from Massachusetts (Mr. ADAMS),
both as to the jurisdiction of the Senate to inquire into this case, and
the evidence exhibited in support of the charges against the accused.
The gentleman from Massachusetts, I am perfectly convinced, has been
influenced in the whole course of this inquiry by the purest and most
laudable motives; and I think he is justly entitled to the thanks of
the Senate for the judicious conduct he has recommended to be pursued.
I perfectly concur with that gentleman in opinion, on the point of
jurisdiction; and upon a retrospect of the whole proceedings of the
Senate, I am happy to say, that it appears to me the best course for
the purposes of justice has been pursued that could have been devised
in the novel and difficult case presented for consideration. A liberal
indulgence has been given to the accused to procure testimony in his
defence; and the witnesses implicated have been protected from injury,
by requiring that they should have notice of the time and place of
taking all depositions affecting their credibility. The only ground
of difference in opinion between the gentleman from Massachusetts and
myself is, in the interpretation of the evidence in the case. I shall
state the points of difference between us upon this subject, without any
other argument than what may be necessary to explain the reasons of this
difference.
The first point of difference relates to the declarations of Aaron
Burr. From these declarations, although general in their nature, and in
no instance made in relation to the accused, inferences of guilt are
attached to him. In almost every case, to apply the declarations of one
man to the condemnation of another, would not be a just rule of evidence;
in this case, it would be peculiarly unjust. Because it is well known
that Burr was in the constant habit of making misrepresentations in
relation to other persons, and that he was influenced by a particular
motive in doing so. He appeared to consider that as one of the most
effectual means to enhance the importance and promote the success of
his enterprise. If his declarations are to be admitted as evidence
against other persons, they would apply to some of the most respectable
citizens of the United States as well as to the accused, which it is not
pretended would be just or correct in relation to them; and I can see
nothing in his observations bearing on the case of Mr. Smith, that would
not apply with a greater force against others, who are neither implicated
nor suspected. I therefore put Burr’s declarations entirely out of the
case, and disregard all inferences drawn from them.
The next point of difference between the gentleman and myself, arises
from a suggested inconsistency between the letters, the affidavits,
and the answer of Mr. Smith. I have paid particular attention to these
papers, connected with the remark made by the gentleman, and am unable
to discover the inconsistency suggested. They appear to me to be
substantially the same. The remark was, that in one of these papers Mr.
Smith states, that Burr did not disclose to him any of his objects; in
another he admitted that he did disclose to him his object of settling
his Washita lands. The remark which occurs to me in reply is, that Mr.
Smith merely states an immaterial fact in one paper, which he omits
in another, as unnecessary. In this I see neither contradiction nor
inconsistency. But the real explanation of this incidental circumstance
will be found in the papers themselves. The one omitting the fact in
question, in speaking of the objects of Burr, evidently alludes to the
unlawful objects of which he has since been accused, and which did not
comprehend the settlement of the Washita lands. This circumstance,
therefore, must in any point of view be deemed trivial unless connected
with some other of more importance; and according to my explanation of it
of no consequence at all. I would here remark, that the fact asserted in
the resolution, is susceptible of the clearest and most certain proof,
and is of such a nature, that if Mr. Smith had committed it, it would
be scarcely possible for him to escape detection by positive proof. I
am therefore not satisfied to form my opinion on trivial circumstances,
particularly when so easily and naturally susceptible of explanation,
consistently with innocence. Mr. Smith’s own conduct is the sole
criterion by which he ought to be judged. If this standard should once
be departed from, and questionable incidents resorted to, instead of
obtaining truth, we shall probably fall into error.
The gentleman from Massachusetts and myself, in our consideration of
this case, concur in the entire exclusion of the testimony of Elias
Glover and all the papers connected with it. We, in one respect,
however, differ on this part of the subject. He read and relied upon the
deposition of Major Riddle forwarded by Glover, which I exclude from all
consideration--not because I know any thing injurious to the character
of that gentleman; nor because I conceive the contents of the deposition
incapable of explanation, consistently with the innocence of Mr. Smith;
but on account of the manner of taking, and presenting it to the Senate.
This deposition with others appears to have been taken and forwarded by
Elias Glover, for the purpose of implicating Mr. Smith. They were taken
without notice, and in the absence of Mr. Smith, although I believe he
was at the time of taking them in the same town where they were taken.
Some of these witnesses had been summoned to testify in his favor and
in his presence--part of them refused to attend, part of them attended
and refused to answer all questions put to them by Mr. Smith. I consider
this conduct as such a departure from every thing that is just, fair, and
honorable, and an evidence of such an incorrect state of mind in relation
to Mr. Smith, that I do not think they are entitled to the respect
of evidence in the examination of his case; I therefore exclude them
altogether.
I consider this conduct as disrespectful to the Senate, and, on the
part of Glover, altogether inexcusable. Because, when the Senate were
informed that Mr. Smith intended to attempt to discredit the evidence
of Glover, they imposed a positive condition on him, that Glover should
have reasonable notice of the time and place of taking all depositions
for that purpose; thus manifesting a laudable tenderness for his
reputation, which he has strangely repaid in this disrespectful attempt
upon the fairness, justice, and candor, of their proceedings. I cannot
forbear making one more observation on the conduct of Elias Glover;
he appears, throughout the whole of the depositions taken by him and
in his presence, to endeavor to cover his own misconduct by enlisting
in his favor the party feelings which he presumes to attribute to the
Senate; thus he has invariably asked, whether he was not a zealous
Republican, and firm supporter of this Administration? I consider this
conduct as an unjustifiable and indelicate attack upon the justice
and candor of the Senate, whilst it furnishes a poor apology for his
own aberrations from the truth; it has a tendency, and must have been
intended, upon a question of guilt or innocence, to draw the Senate from
the immutable principle of justice and truth, _as the standard of trial_;
and to substitute, in their stead, the dangerous touchstone of party
sensibility. I have had too long experience of the correct motives which
actuate the Senate in all their deliberations, to feel any apprehensions,
in the present case, from these unfortunate attempts; but it is time the
world should know that they are improperly applied, when addressed to the
Senate of the United States.
Having candidly stated the impressions upon my mind made by the portion
of the papers just alluded to, and the observations of the gentleman from
Massachusetts thereupon, I will now proceed to examine the other papers
more relied on by him, and entitled to more respect as evidence. The
course the gentleman pursued was fair and candid, and well calculated
to give a correct view of the conduct and object of the accused; I
shall, therefore, pursue the same course, which was to take the facts in
their chronological order. The first fact, in relation to Mr. Smith’s
conduct, to which our attention has been called, was on the 4th of
September, 1806. On this day Burr, having previously addressed a note
of invitation to Mr. Smith, presented himself at Mr. Smith’s house,
where he was hospitably received and entertained, until the tenth of
the same month. Burr had, before this time, been at Blannerhasset’s
Island, where it is probable, in concert with Blannerhasset, certain
pieces, under the signature of the Querist, were written; and, about the
time of Burr’s leaving the island, were published. The object of these
pieces evidently was to make an experiment upon the disposition of the
Western people, as to the separation of the Union, then certainly in the
contemplation of Burr. It was an object near his heart, and, no doubt,
deemed all-important to the success of his ambitious views. Mr. Smith
states that this subject was never mentioned by Burr to him during his
stay at Mr. Smith’s house, from the 4th to the 10th of September. The
observation made upon this part of the evidence is, that it is strange
that Burr should not have mentioned this subject, under the peculiar
circumstances of the case. I concur perfectly in the observation. I
think it strange that Burr should not have mentioned the subject; but
am I to infer that he did mention it, merely because it is strange that
he should not have mentioned it? Is its being strange that it did not
happen, evidence of the fact that it did happen; particularly, when
there is no other evidence of the fact, but all the evidence upon that
point is against the fact? I will here make an observation, of a general
nature, which has had great weight with me in forming my opinion upon
the whole merits of this case. It is, that it does not appear, from
any part of the evidence, that Burr deemed it prudent, at any time, to
disclose his illicit objects to Mr. Smith; or that he ever considered Mr.
Smith as a safe depositary of his secrets. This want of confidence in
Mr. Smith, for his illicit objects, is discernible in many parts of the
evidence, and this consideration alone lessens the presumption of Burr’s
making the separation of the Union a subject of conversation whilst at
Mr. Smith’s house. Burr, also, would naturally be cautious and reserved
upon that subject, until the experiment, then about to be made on the
people, should disclose itself, and some certain estimate be formed of
its effects. Again, sir, whilst Mr. Smith has solemnly sworn that such
conversation did not take place, and there is no evidence whatever to
show that it did--there are other circumstances strongly supporting
his assertion. It is known that Burr generally disclosed his plans to
persons unfriendly to the Administration, and feeling strong excitements
and irritations against it. He considered such persons only fit for his
purposes. In this, however, much to the honor of American citizens, he
was mistaken. But he had no reason to believe Mr. Smith was a person of
this description. Very far otherwise. For, independent of Mr. Smith’s
general attachment to the Administration, he held the dignified station
of Senator, and a profitable contract under the Government: Burr had no
reasonable expectation that Mr. Smith was ready to abandon these certain
advantages for the uncertain prospects arising from Burr’s wicked and
visionary projects; and, of course, would be cautious of making such
an unpromising attempt; one which, if it failed, would subject him to
certain and instantaneous detection. Another strong circumstance in
favor of this conclusion, is derived from Burr’s letter to Mr. Smith,
of the 20th of October, 1806. One of the expressions alluded to, is the
following: “I have never written or published a line on this subject,
(the separation of the Union,) nor ever expressed any other sentiments
than those which you have heard from me in public companies at Washington
and elsewhere, and in which, I think, you concurred.” Here is a direct
reference to this subject, but it is not intimated that any conversation
took place at Smith’s house in relation to it, but “in public companies
at Washington and elsewhere.” As far, therefore, as mentioning the
conversation as happening at other places, and omitting it as having
happened at Mr. Smith’s house, upon a recent visit there, can go, it
serves to show that such conversation, in all probability, did not take
place there, and leaves a very strong inference in favor of Mr. Smith’s
statement. Am I, then, to infer a fact of guilt against all these
circumstances in favor of innocence? My mind is incapable of making such
an inference. It would be, to convert the rules of the evidence of facts
into improbable grounds of inducing suspicions--error, not truth, must be
the consequence of such substitution.
The next evidence in point of time from which some circumstances
of suspicion are inferred against Mr. Smith, is the testimony of
Colonel James Taylor. To this evidence I concur with the gentleman
from Massachusetts in paying great respect, because it was given with
intelligence, candor, and circumspection, highly honorable to Colonel
Taylor. The substance of his testimony is, that some short time
after the 10th September, and after the pieces under the signature
of the Querist had been published, and become the subject of general
conversation, being in company with Mr. Smith and others, in Cincinnati,
the sentiments avowed in those pieces became the subject of a particular
conversation, in which, according to the impressions made on his mind,
Mr. Smith advocated a separation of the Union; and he thought, not only
delivered this opinion, as an opinion recommended by the Querist, but
as his own. I differ in several important respects with the gentleman
from Massachusetts as to the true explanation of this testimony, taken
in connection with other evidence, bearing irresistibly upon the same
point. In the first place, it is to be ascertained whether Mr. Smith
really did express this opinion in the sense imputed to him by Colonel
Taylor, or whether Colonel Taylor is not mistaken in that respect? And,
in the next place, whether, if he did so express himself, it was done
with any mischievous intent?--both these circumstances being necessary
to constitute a criminal act. I am strongly inclined to think, indeed I
am almost perfectly satisfied, that Colonel Taylor is mistaken in this
particular point of his evidence. There is part of Colonel Taylor’s
own evidence, which furnishes strong considerations for caution in
interpreting the rest. The candor and circumspection observed by the
deponent, in this particular point of evidence, is so honorable to
him, that I beg leave to present it to the Senate in his own words.
After answering many questions put to him by Mr. Smith, Colonel Taylor
concludes his evidence with the following voluntary observation: “I beg
leave further to state, that Mr. Smith has generally been viewed as a
friendly, benevolent, worthy man, and his family, (consisting of an
amiable wife and daughter, and several very promising sons,) have been
considered entitled to, and held a place in the first circles of society
in our quarter.”
What could have induced Colonel Taylor to make this observation upon
closing his evidence? There is no doubt, sir, it was intended as a
caution to the Senate in the interpretation of other circumstances,
although related by himself. It evidently arose from a consciousness that
those circumstances were vague and uncertain, and that his impressions of
them might be mistaken. It was the spontaneous conviction of an amiable
mind, laboring under an impression that innocence might become the victim
of its own honest misconceptions. I will now state my reasons for the
conviction that Colonel Taylor was mistaken in supposing that Mr. Smith
spoke of the separation of the Union as an opinion of his own, and not as
the opinion inculcated by the Querist.
The opinions expressed in the Querist had not only become the subject
of general conversation, but were the subject of that particular
conversation. Mr. Smith probably recited these opinions in an unguarded
manner; and from that circumstance, it was not unnatural that Colonel
Taylor’s impressions might have been formed. This appears from the
deposition of Doctor Sellman, who was present at the same conversation;
and swears expressly that he was induced to put this question to Mr.
Smith, most probably from the unguarded manner of expressing himself: Are
these your own opinions, or those expressed from the Querist? To which
Mr. Smith replied, they were the opinions of the Querist, and not his own
opinions; and added, that he deprecated a separation of the Union, and
hoped to God never to live to see the day when that event should take
place. Here is the positive evidence of Doctor Sellman to the particular
fact in question; whereas Colonel Taylor speaks of the impression made
on his mind by the whole tenor of the conversation. Colonel Taylor must
therefore be mistaken, or Doctor Sellman wilfully forsworn. Would
it be proper to make this presumption against Doctor Sellman? Who is
Doctor Sellman? A gentleman of irreproachable character; the friend
and brother-in-law of Colonel Taylor; and, I believe, the friend of
the Government and of the Administration. Doctor Sellman does not stop
here; he swears that he is in habits of intimacy with Mr. Smith, and
that he never did, before or since that period, hear Mr. Smith express
any opinion in favor of a separation of the Union, but has often heard
him express opinions directly and positively against it. Does Colonel
Taylor contradict this statement? No, sir, but confirms it. He also
swears that he never heard Mr. Smith express that opinion at any other
time before or since. Now, sir, as Colonel Taylor himself states that
the pieces signed the Querist, were the subject of the conversation in
question, and that he never before or since that time, heard Mr. Smith
express analogous opinions with those of the Querist; and when Doctor
Sellman swears positively, that during that particular conversation,
he put the identical question to Mr. Smith, Are you speaking your own
opinions, or those of the Querist?--and that he unequivocally answered,
not his own, but those of the Querist; and also swears positively that he
never did, before or since that time, hear Mr. Smith express analogous
opinions to those of the Querist, but often the reverse--would it not
be a strange perversion of the rules of evidence to say, that on that
particular occasion alone, he expressed opinions in direct hostility with
those expressed during the whole course of his life, both before and
afterwards? But this is not all. This case furnishes evidence still more
conclusive, if possible, in favor of my interpretation.
If Mr. Smith had been in the habit of expressing this opinion, would
not the zeal, the activity and the intelligence of Elias Glover and his
associates, have discovered and communicated it? Men who, not content
with the most inveterate accusations and persecutions against Mr.
Smith, in their individual capacities, have formed clubs, and at length
associated themselves in a corporate character under the imposing name
of the Republican Society, for that and other purposes. After their
profusion of other charges, which they could not substantiate, is it to
be presumed that they would have omitted this charge, if it had been
true, and thus could have substantiated it? Their not having made, is
almost conclusive proof with me that it did not exist. But further, what
does General Carberry say upon this subject? That he is in habits of
intimacy with Mr. Smith, and that he never heard him express a sentiment
in favor of the separation of the Union, but often the reverse. That
he did, however, on one occasion, hear Colonel James Taylor express an
opinion, in company with several persons, that a separation of the Union
would take place at some distant time, say ten or twelve years. And
upon his asking Colonel Taylor, after retiring from the company, if he
did not think it imprudent to express that opinion, even speculatively,
Colonel Taylor admitted that he thought it was, and made some patriotic
observations on the occasion.
This leads me to examine the second question in relation to this point.
Even admitting that Mr. Smith did express the opinion attributed to him
by Colonel Taylor, _as his own_, was it done with any criminal intent? I
am satisfied it was not.
I cannot help remarking here, that I do not concur with the gentleman
from Connecticut, (Mr. HILLHOUSE,) who seemed to intimate that there
was nothing criminal in expressing speculative opinions in favor of
a separation of the Union. In my opinion, if the expression of that
speculative opinion be accompanied with an intent to gain proselytes,
and thus to effect the object, it is highly criminal; because it is an
opinion tending directly to subvert the Constitution and Government
of the United States, and to attempt that object in any way, I deem
highly criminal. What is treason but speculative opinions against the
fundamental principles of the Government, accompanied with an attempt to
carry such opinions into effect by force?
The only difference, therefore, between these offences, consists in this:
that the criminal object in the one case is to be effected by force; in
the other by persuasion. But I do not believe that Mr. Smith could have
any such object in view. To whom was this conversation addressed? To
gentlemen of the first respectability--known to be firm friends of the
Government. To Colonel Taylor, to General Findley, to Dr. Sellman, &c.,
&c. Could Mr. Smith presume for a moment that he could make proselytes
of gentlemen of this description? Could he suppose that they were fit
objects to be used in illicit enterprises? Certainly not. Does either
of them state that he made any attempts of this kind? Certainly not. Is
there any other instance of his having expressed any opinion in favor of
a separation of the Union during the whole course of his life? Certainly
not. This is the only solitary instance of such an expression that
has been adduced or pretended. Is there any criminal intent ascribed
to Colonel Taylor for the expression of a similar opinion to General
Carberry? Certainly not. What rule of evidence is applicable to Mr. Smith
which is not applicable to Colonel Taylor? Is it just to condemn one
man for the expression of an opinion, when the expression of the same
opinion by another does not even subject him to suspicion? From all these
circumstances I am satisfied, first, that Mr. Smith did not express the
opinion in favor of the separation of the Union, in the sense attributed
to him by Colonel Taylor; and, in the next place, if he did, it was not
expressed with any criminal intent. The next evidence, in point of time,
from which inferences are drawn injurious to Mr. Smith, is the testimony
of Peter Taylor. It relates to circumstances which took place at Mr.
Smith’s house on the 23d of October, and shortly afterwards. The first
observation made in relation to this point is, that Mr. Smith, in his
answer, states that Peter Taylor is a man unworthy of credit, for several
reasons mentioned by him, and that he was incorrect in his evidence in
the recital of several incidental circumstances; whereas it is said that
Peter Taylor is a man of fair character, though ignorant and uninformed,
and that his testimony is unimpeached. I readily admit that Mr. Smith’s
impressions in relation to Peter Taylor’s character are more unfavorable
than are warranted from the state of the evidence before the Senate; but
this is not wonderful, when all circumstances are considered. When it is
considered that a deadly wound to Mr. Smith’s character was apprehended
by him to be about inflicted by Peter Taylor’s evidence, which consisted
principally in the recital of incidental circumstances, in some of which
he was evidently mistaken; when all the knowledge Mr. Smith had of him
was, that he was one of Blannerhasset’s servants, and presumed to be both
ignorant and uninformed, it is not wonderful that Mr. Smith should have
entertained a worse opinion of him than he merited; but I see nothing
criminal in this misconception. It was a perfectly innocent and natural
one.
I readily also admit that, in general, Peter Taylor’s character for
truth and veracity stands unimpeached, although it must at the same
time be admitted that he was mistaken in some of the many incidents he
relates; and in one very remarkable instance, to wit: forgetting the
death of his wife, which happened about six weeks before, he mentions a
circumstance of making a further provision for her support. I mention
this, however, not for the purpose of having an injurious influence upon
the general course of his evidence, but merely as a caution against
paying too much respect to the episodes or the incidental circumstances
mentioned by witnesses, and particularly by him. Inferences of guilt
ought very cautiously to be drawn from such sources. But I see nothing
in the material and substantial part of Peter Taylor’s evidence but what
is perfectly consistent with Mr. Smith’s innocence, and, in my judgment,
tends strongly to support it. As this evidence has been very much relied
on to criminate Mr. Smith, let it now be critically examined in a spirit
of justice and impartiality. Peter Taylor’s evidence is substantially as
follows: During the month of October, Mrs. Blannerhasset having become
very much alarmed for the safety of her husband, in consequence of the
resentment of the people in the neighborhood against him, produced by
the pieces under the signature of the Querist, which he acknowledged
himself to be the author of; and believing that Burr had instigated
him to that conduct, dispatched Peter Taylor, her gardener, in quest
of Blannerhasset, with a letter, requesting that he would return to
the island, and would prohibit Burr from again returning thither.
Being uncertain where Blannerhasset might be, but presuming he would
be found with Burr, she directed Peter Taylor to search for him, first
at Chilicothe, and if he should not be found there, at Cincinnati,
and to inquire at the house of John Smith, storekeeper. In pursuance
of these instructions, Peter Taylor being unsuccessful in his search
at Chilicothe, arrived at Mr. Smith’s house in Cincinnati on the 23d
of October. When Mr. Smith came out to him, he inquired for Burr and
Blannerhasset: his object, he states to be, to see if Mr. Smith could
give any account of them. Mr. Smith first told him that he had mistaken
the place; that they were not there, and he knew nothing of them. But
upon telling Mr. Smith that he was one of Blannerhasset’s servants, and
was sent in quest of him by Mrs. Blannerhasset, Mr. Smith took him up
stairs to a chamber he was accustomed to write in, to write a letter
to Mr. Blannerhasset, and told him they would probably be found at Mr.
Jourdan’s in Lexington, Kentucky, where it appears from his evidence
that Mrs. Blannerhasset originally intended that he should go, if he
should not find Blannerhasset before he should arrive there, &c. From
these circumstances, strong instances of guilt are deduced against
Mr. Smith. Making allowances for the eccentricities of Peter Taylor’s
recital, and the inaccuracies of some trivial incidents, which appear
to me very obvious, I see nothing at all improper or unnatural in Mr.
Smith’s conduct. Upon Peter Taylor’s first inquiry, Mr. Smith supposed he
was mistaken in the place. Was not this supposition very natural, when
probably Blannerhasset never was at Mr. Smith’s house at all, and Burr
had left it the 10th of September preceding, nearly six weeks before
that time, and certainly was both mysterious and rapid in his movements?
But when Peter Taylor tells Mr. Smith that he was going in quest of
Blannerhasset, with a letter from Mrs. Blannerhasset, to Lexington; then
Mr. Smith tells him he will probably find them at Mr. Jourdan’s--the
place where it is probable Burr told him he should take his lodgings--and
proposed to send a letter to Blannerhasset by the witness, which he
immediately wrote and gave to the witness; during which time there was
some very common, and, in my judgment, very immaterial conversation,
between Mr. Smith and the witness, perhaps not very accurately related.
So far, certainly, this transaction cannot be deemed criminal; but the
letter addressed to Blannerhasset covered one to Burr, and upon its being
presented to Burr, who was found at Lexington before Blannerhasset was,
Burr premising that it contained one addressed to him, opened it, and
found that he was right in his conjecture. This circumstance is said
to be extremely suspicious, and from it an improper connexion between
Colonel Burr and Mr. Smith is inferred. I readily admit, that in itself
it is a suspicious circumstance; and if the evidence stopped here, it
might be difficult to account for it without some grounds for the
inference of such connection. But I consider the evidence upon this point
complete and positive, and that there is nothing left to inference. In
the first place, it should be recollected that Peter Taylor was in quest
of Blannerhasset with a letter for him from his wife; the presumption,
therefore, was, that he would find Blannerhasset before he did Burr;
and if so, he would not find Burr at all, because his object would be
answered, and his journey at an end. This circumstance, no doubt, induced
Mr. Smith to put his letter to Burr under cover to Blannerhasset; but as
Burr, contrary to Mr. Smith’s expectation, was first found, why did he
open the letter to Blannerhasset, upon the presumption that it contained
one for him? Although I think this circumstance of no importance, as the
letter itself is before us, I will yet state my impressions respecting
it. Burr probably knew that Blannerhasset was an entire stranger to Mr.
Smith; he therefore thought it improbable that Mr. S. would write to
him; Burr could also discover, by feeling the letter, that it contained
an enclosure, and as he had but recently abused Mr. Smith’s friendship
and hospitality, and knew of the unfavorable impressions on the public
mind against every one who had confided in him in any way whatever, it
is but natural to conclude he conjectured that Mr. Smith had availed
himself of the opportunity by Peter Taylor of writing to him upon that
subject. But why are explanations of this circumstance called for?
Why indulge suspicions respecting an object, when the object of such
suspicions is itself before us? Why infer an improper connection, when
the evidence of the real connection, or the object of the correspondence
itself, is before us? This will be found in the identical letter written
by Mr. Smith to Mr. Burr, and delivered by Peter Taylor. Let us discard
inferences, and attend to the contents of the letter, and see if there is
any thing criminal in them. The authenticity of this letter is admitted
by all.
No. 21.
_J. Smith’s Letter to A. Burr, 23d October, 1806, sent by Peter Taylor._
CINCINNATI, Oct. 23, 1806.
DEAR SIR: Having an opportunity of writing a line by one of
Blannerhasset’s domestics, I beg leave to inform you that
we have in this quarter various reports prejudicial to your
character.
It is believed by many that your design is to dismember the
Union. Although I do not believe that you have any such design,
yet I must confess, from the mystery and rapidity of your
movements, that I have fears, let your object be what it may,
that the tranquillity of the country will be interrupted,
unless it be candidly disclosed, which I solicit, and to which
I presume you will have no objection.
I am, dear sir, your most obedient servant,
JOHN SMITH.
Colonel BURR.
I differ more from my honorable friend from Massachusetts, upon the
interpretation of this part of the evidence than upon any other, and
think his inference more unreasonable and improbable. He seems to admit
that the letter itself contains nothing criminal, but infers a criminal
intent in writing it. He supposes it to have been the effect of an
arrangement previously concerted with Burr to divert and deceive the
public attention, and seems to consider it a masterpiece of diplomatic
skill; and thus he ascribes to Mr. Smith the character of consummate
duplicity. I think the character of this transaction is just the reverse.
I think it the letter of a plain, unsuspicious, deluded man. It should be
observed, that it is scarcely possible that such an arrangement should
have been made between Burr and Mr. Smith as is presumed; because, at
the time Burr left Mr. Smith’s house, neither of them could have been
apprised of Peter Taylor’s mission. He was sent by Mrs. Blannerhasset,
without the knowledge of either of them, in consequence of circumstances
which had taken place after Burr had left the island, as well as Mr.
Smith’s house; circumstances which Mr. Burr could not have wished or
expected, and, therefore, could not be presumed to have taken precautions
against them; nor can it be presumed that Mr. Smith could have availed
himself of an opportunity of which he was not apprised, in a moment,
without a minute for deliberation, to contrive and execute such a plan;
nor could Burr have been furnished with any clue to his object, if he
had. It would, indeed, have been a _chef d’œuvre_ in the diplomatic art;
it would have been beyond the skill of the Prince of Benevento himself;
nor, could Mr. Smith have been made competent to it by his most diligent
attention as the Prince’s pupil for three months, being about the time,
in the course of Mr. Smith’s whole lifetime, in which he is presumed
to be completely converted from a plain-dealing, honest man, into the
prince of intriguers and negotiators. Human nature is not capable of such
a conversion, if it wished it; Mr. Smith could not, if he would, have
thus metamorphosed his own character. The inferences of the gentleman,
therefore, are strained, unnatural, and scarcely possible. If we give
the letter its common and natural import, it is perfectly innocent, if
not laudable. Mr. Smith, doubtless, felt some uneasiness at the general
resentment displayed against Burr, and might apprehend it would be
applied to him in consequence of having hospitably entertained Burr at
his house; and, believing Burr to entertain no dishonorable views, he
very naturally and properly wrote to him to disclose his objects, that he
might tranquillize the public mind respecting them. But inferences are
made from Burr’s letters, in reply, unfavorable to Mr. Smith. I differ
entirely with the gentleman from Massachusetts, in the interpretation of
the contents of that letter. This letter, being in reply to Mr. Smith, is
such a material part of the evidence, that I wish to present it entire to
the Senate:
“_A. Burr’s answer to John Smith, Oct. 26, 1806._
“LEXINGTON, Oct. 26, 1806.
“DEAR SIR: I was greatly surprised and really hurt by the
unusual tenor of your letter of the 23d, and I hasten to reply
to it, as well for your satisfaction as my own. If there exists
any design to separate the Western from the Eastern States, I
am totally ignorant of it; I never harbored or expressed any
such intention to any one, nor did any one ever intimate such
design to me. Indeed, I have no conception of any mode in which
such a measure could be promoted, except by operating on the
minds of the people, and demonstrating it to be their interest.
I have never written or published a line on this subject,
nor ever expressed any other sentiments than those which you
may have heard from me in public companies at Washington and
elsewhere, and in which I think you concurred.[†] It is a
question on which I feel no interest, and certainly I never
sought a conversation upon it with any one; but, even if I had
written and talked ever so much of the matter, it could not be
deemed criminal.
“But the idea, I am told, which some malevolent persons
circulate, is, that a separation is to be effected by force;
this appears to me to be as absurd and as unworthy of
contradiction, as if I had been charged with a design to change
the planetary system. All the armies of France could not effect
such a purpose, because they could not get here; and if they
could get here, they could not subsist, and if they could
subsist, they would certainly be destroyed.
“I have no political views whatever; those which I entertained
some months ago, and which were communicated to you, have been
abandoned.[‡]
“Having bought of Colonel Lynch four hundred thousand acres
of land on the Washita, I propose to send thither this fall a
number of settlers, as many as will go and labor for a certain
time, to be paid in land and found in provisions for the time
they labor--perhaps one year. Mr. J. Breckenridge, Adair, and
Fowler, have separately told me that it was the strong desire
of the Administration that American settlers should go into
that quarter, and that I could not do a thing more grateful
to the Government. I have some other views which are personal
merely, and which I shall have no objection to state to you
personally, but which I do not deem it necessary to publish;
if these projects could any way affect the interests of the
United States it would be beneficially, yet I acknowledge that
no public considerations have led me to this speculation, but
merely the interest and comfort of myself and my friends.
“This is the first letter of explanation which I have ever
written to any man, and will probably be the last. It was
perhaps due to the frankness of your character, and to the
friendship you once bore me. I shall regret to see that a
friendship I so greatly valued must be sacrificed on the altars
of calumny.
“Be assured that no changes on your part can ever alter my
desire of being useful to you; and pray you to accept my
warmest wishes for your happiness.
“A. BURR.
“It may be an unnecessary caution, but I never write for
publication.
“Hon. JOHN SMITH.”
NOTES in the handwriting of Mr. Smith.
[†] Mr. J. Smith has heard Colonel Burr and others say that, in
fifty or a hundred years, the territory of the United States
would compose two distinct Governments.
[‡] Mr. J. Smith presumes that Mr. Burr refers to an invitation
to settle in Tennessee, of which he heard him speak.
The first observation made by the gentleman from Massachusetts, upon
the contents of this letter was, that it appeared wonderful to him that
this letter should have reinstated Burr in Mr. Smith’s good opinion,
after some doubts of his views had been excited in Mr. Smith’s mind, by
the general clamor of the country against him. The impression produced
upon my mind, by observing the contents of this letter, is just the
reverse. I think the letter written with great art and address, and well
calculated to produce the effect on Mr. Smith’s mind which he states it
did produce, the restoration of Burr to his confidence. To form a just
opinion on this point, it should be recollected that Burr had previously
insinuated himself into Mr. Smith’s confidence, and that Mr. Smith was
not at that time apprised of his illicit objects; because, at that time,
they were not generally disclosed; and because, it appears, from several
passages in the letter itself, that Burr had not disclosed them to Mr.
S. Since Burr’s objects have been generally known, we may find passages
in the letter obscurely pointing toward them. Of this description is the
one referred to by the gentleman from Massachusetts. Speaking of the
separation of the Union, Burr writes:
“Indeed, I have no conception of any mode in which such a
measure could be promoted, except by operating on the minds of
the people, and demonstrating it to be their interest.”
The very mode, says the gentleman, which he was then pursuing. This is
very true, but of that it is certainly not in proof that Mr. Smith had
any knowledge; and this letter serves to demonstrate, in connection
with many other circumstances, that he had not. But, in the very next
sentence, Burr proceeds:
“I have never written or published a line on this subject,
nor ever expressed any other sentiments than those which you
may have heard from me in public companies at Washington and
elsewhere.”
And immediately preceding it, he thus writes:
“If there exists any design to separate the Western from the
Eastern States, I am totally ignorant of it; I never harbored
or expressed such intention to any one, nor did any person ever
intimate such design to me.”
Now, sir, take these sentences together, and let any candid mind say,
circumstanced as Mr. Smith was, in relation to Burr, whether it was not
perfectly natural for him to draw the conclusions he did? Whether these
sentences do communicate to Mr. Smith any illicit object on the part of
Burr? Whether they do not contain a denial of any intention or effort on
his part to effect a separation of the Union? To my mind they do. I am
not, therefore, surprised that Mr. Smith drew the inference from them
which he did; and I should have been much surprised, indeed, if, from
them alone, he had drawn any inference of improper views on the part of
Burr. I said there were passages in this letter, which furnished the
strongest presumption that Mr. Burr had not communicated his illicit
objects to Mr. Smith. Let me now call the attention of the Senate to some
of them. After speaking of his intention to settle the Washita lands,
Burr writes thus:
“I have some other views which are personal merely, and which I
shall have no objection to state to you personally, but which I
do not deem it necessary to publish; if these objects could in
any way affect the United States, it would be beneficially,” &c.
If Burr had already communicated his views to Mr. Smith, why should
he say in this letter, “I shall have no objection to state to you
personally;” certainly if he had already stated them, this profession
would not only have been unnecessary, but foolish. Burr again writes:
“This is the first letter of explanation which I have ever
written to any man, and will probably be the last. It was,
perhaps, due to the frankness of your character and to the
friendship you once bore me. I shall regret to see that a
friendship I so greatly valued must be sacrificed on the altars
of calumny. Be assured that no changes on your part can ever
alter my desire of being useful to you; and I pray you to
accept my warmest wishes for your happiness.”
Here follows the postscript:
“It may be an unnecessary caution, but I never write for
publication.”
From the whole tenor of this letter the real connection between Mr. Smith
and Burr may be easily discerned; but it is particularly demonstrated
by these last sentences. In them the real state of Burr’s mind may
be clearly seen. They discover a man conscious of having abused the
unguarded confidence and misplaced friendship of another, which he
was about to lose by the public exposure of his views. They display
despondency and regret at the circumstance, and attempt to make a
miserable atonement by a renewal of professions. They demonstrate,
too, that there was no participation in the conspiracy. In further
corroboration of these conclusions, it ought not to escape notice that,
on Burr’s next visit to Cincinnati, he took lodgings at a tavern, and
avoided Mr. Smith’s hospitality, which would, doubtless, have been still
open to him; he having been more successful in regaining Mr. Smith’s
confidence by the artful letter written by him, than he had expected.
This I believe to be the plain, obvious, and natural import of this
letter. To suppose that it was the effect of a preconcerted arrangement
between Burr and Mr. Smith, and intended to disguise the real connection
between them, would be a strained, improbable, unnatural supposition,
and, therefore, in my judgment, ought not to be relied upon in any
case, but especially not upon a question of guilt or innocence. The
postscript of the letter itself furnishes another strong presumption
against this conclusion. The next circumstance, in point of time, from
which inferences injurious to Mr. Smith are drawn, happened on the 2d or
3d of December, at Frankfort, in Kentucky. At this time and place, Burr
was attending on the court upon his second trial. Mr. Smith was drawn
thither by business, when a short interview took place, between himself
and Burr, very immaterial in its objects or consequences. The ground
of crimination deduced from this circumstance, is, that Mr. Smith did
not voluntarily attend the court as a witness against Burr, and testify
to the disclosures which Burr had made to him upon his last visit to
Cincinnati. Mr. Smith stated, at the time, his willingness to attend, but
believed he knew nothing relevant to the ground of charge against Burr.
The gentleman from Massachusetts differs from Mr. Smith in opinion on
this point, and conceives that if Mr. Smith had attended that court,
and disclosed what he has since disclosed, in relation to Burr’s
last communications to him, it would have been sufficient for Burr’s
conviction. I differ entirely from the gentleman on this point. All that
we know relative to Burr’s disclosure of his views, at that time, is
furnished by Mr. Smith himself. What was disclosed, it would probably be
best to take from Mr. Smith’s own words:
“The candor discovered in the above-recited letter, (of October
26, 1806,) inspired my confidence, and when he made his second
visit to Cincinnati, in November last, he disclosed his plan
fully to my view, as I thought, which added strength to my
confidence. He being about to take leave of me, observed: ‘Mr.
Smith, my object in a few months will be disclosed; you will
not find it dishonorable or inimical to this Government. I
feel superior to the mean artifices which are ascribed to me;
calumniators I do not notice, for as fast as you put one down,
another will rise up. This much I will venture to tell you,
if there should be war between the United States and Spain, I
shall head a corps of volunteers, and be the first to march
into the Mexican provinces; if peace should be preserved, which
I do not expect, I shall settle my Washita lands, and make
society as pleasant about me as possible. In this Government I
have been persecuted, shamefully persecuted, and, I am sorry
to say, that in it all private confidence between man and man,
seems to be nearly destroyed.’ He showed me a deed for a large
tract of land on Red River, and said, ‘if I would consent to
let my sons go thither, he would provide well for them,’ to
which I gave consent, though I never communicated it to my
eldest son until last Saturday, the day on which he returned
from Marietta, and not till he expressed a disinclination to
co-operate with Colonel Burr’s object, till he knew whether
it was hostile to the Government of the United States or
not. Colonel Burr told me, further, ‘that very many of his
friends, in different parts of the United States, would remove
and settle with him, and that he would be the best neighbor
this country ever had,’ and repeated ‘that his object was not
hostile to the people of the United States, or dishonorable to
himself;’ and, further, ‘that, in a few months, many of his
enemies would be proud to call him their friend.’”
What is here disclosed? Two objects only. The first to settle his Washita
lands; the second, in the event of war with Spain, to head a company of
volunteers, and be the first to march into Mexico. What was the charge
against Burr? A misdemeanor, by beginning and setting on foot a military
expedition or enterprise against a nation with which the United States
were at peace, &c. Would this evidence have had any tendency towards
supporting this charge? Certainly not. Spain had nothing to do with the
settlement of the Washita lands, and with respect to the contemplated
military expedition into Mexico, it was to be undertaken only in the
event of war, and of course could be no violation of a law which forbids
such enterprises, only against nations with which the United States are
at peace. The evidence, therefore, could not support the charge; and
whether such enterprise in time of war would have been lawful or not,
would have depended upon the circumstance of the partisan’s acting with
or without a commission from the United States, but the gentleman from
Massachusetts remarks that this pretended condition, upon which the
expedition against Mexico was to be undertaken, was too thin a disguise
to impose upon the most credulous or ignorant. I will here admit that I
always thought it a very thin disguise; but did every body think so, and
particularly before Burr’s other views were disclosed? It is known that
many men of the first talents were deceived by this disguise long after
this period. It was urged by many as a substantial ground of defence in
favor of Burr, during the whole course of his trial at Richmond, and many
adhered to it, even after the trial was over. Why is it expected that Mr.
Smith particularly ought not to have been the dupe of this disguise at
that particular period? It cannot be because he is known to have reposed
a blind confidence in Burr. It is probable that Burr’s knowledge of that
circumstance induced him to suggest the disguise. It is certainly the
circumstance which lulled Mr. Smith’s suspicions, and made him the dupe
of the artifice. It may be said, and truly said, he ought to have been
more guarded; it would certainly have been better for Mr. S. to have been
a better judge of human nature, and his present condition is sufficient
evidence of the misfortune of the want of that knowledge, but it is no
evidence of a crime, or of a criminal intent. The only conclusion I draw
from this circumstance is, that Mr. Smith furnishes a striking example of
a plain-dealing, unsuspicious man, involved in irretrievable difficulties
from the professions and flatteries of an artful and designing one.
The next observation made upon this part of the evidence disclosed by
Mr. S. is, that he consented to let his sons go with Burr, from which
a knowledge of Burr’s illicit views is inferred. It certainly would be
an incorrect application of the rules of evidence to infer an object
different from the one disclosed by the evidence, particularly when the
one expressed is much more natural and probable than the one inferred.
Mr. Smith himself furnishes both the fact and the object. He says he was
induced to consent to his sons going with Burr, from Burr’s promises
to advance their fortunes by giving them large portions of his Washita
lands. Was not this a very natural object? What could be more natural
or probable than for a father to be influenced by a motive of advancing
his son’s fortunes? But it is said this conduct discovered too much
confidence in Burr, and too much simplicity in Mr. Smith, there must be
therefore some other concealed motive for it. It is admitted that none is
proved, and I believe none exists. It is perfectly consistent with all
the rest of the evidence. It does demonstrate too much confidence and
too much simplicity; but it demonstrates nothing else. It demonstrates
no crime. It does not demonstrate any participation in the conspiracy of
Aaron Burr. We have now passed through these scenes of inferences and
suspicions, and arrived at the 14th of December, 1806. The gentleman
from Massachusetts, with his usual candor, here states, that from this
time Mr. Smith’s conduct became exemplary, from this date every effort
on his part was made to defeat the conspiracy; he contributed his full
quota of exertion for that purpose, and succeeded. How can this laudable
conduct be reconciled with the inferences of guilt made against him?
Why, sir, another inference more preposterous than any other, is brought
up to support all the former inferences, in my judgment, sufficiently
preposterous and improbable in themselves. It is said that this laudable
exertion to suppress the conspiracy by Mr. Smith was intended as a cover
to his former misconduct. But certainly, sir, before this inference is
drawn, the former misconduct ought to be proved. It ought not to be made
evidence of the misconduct itself. It certainly cannot be a correct rule
of evidence to infer a wrong motive from a right action. But, sir, this
inference is made against every rule of probability. It is not probable
that if the conspiracy should be suppressed by Mr. Smith’s exertions in
common with others, that such suppression would cover his own misconduct.
It would have been the most effectual mode of detecting and exposing it.
What hope could Mr. Smith have indulged, that if he had been engaged in
the conspiracy, and had turned traitor to the rest by exerting himself
in its suppression, that he would have been exempted from exposure?
Would not such conduct have tended to excite the resentment of the other
conspirators against him, and to call forth from them every exertion
to expose him? This conduct was placing them at defiance, and in my
judgment, is one of the strongest circumstances of his innocence. It was
not at all calculated to cover his participation, and it appears to me
absurd to conclude that it was resorted to for that purpose. But, sir,
look at Mr. Smith’s disclosure to the Secretary of War at this period. At
this time could he not have anticipated any prosecution against himself.
It was the day after the receipt of the President’s proclamation. At
that time he communicates to the Secretary of War all the communications
made by Burr to him at any previous time, confirmed in every respect
by the evidence of General Gano. I believe he did it with candor, and
then he makes the following natural and correct observations, after
having stated that Burr had deceived him with his apparent candor, that
he had before believed Burr’s views to be honorable; he remarks: “From
the proclamation of the President, I am induced to believe that he is
possessed of much more information than has come under my notice, and
therefore the utmost attention will be paid to it, as the people here are
universally (almost) well disposed to the Government, &c.”
Upon the supposition that Mr. Smith is innocent, this conduct is natural
and its object obvious. Upon the supposition of his guilt, it is
unaccountable, and would have been without a rational object. I cannot,
therefore, infer guilt against all the probabilities of innocence. I
have now gone through all the evidence which has been deemed by the
gentleman from Massachusetts the most material against Mr. Smith. I
have omitted many circumstances both in the papers formerly before the
Senate, and those now presented by Mr. Smith’s counsel, tending further
to demonstrate his innocence; to these I merely request the attention and
recollection of the Senate. It has not been my object to dilate on them,
but merely to state the reasons on my mind why the conviction of Mr.
Smith’s guilt was not produced on it, which has been on the gentleman’s
from Massachusetts. This has been done by the best consideration of
those parts of the evidence which he so ably and eloquently selected and
presented to our view; of course the worst part of the picture has been
constantly before us. Upon a candid review of all the circumstances,
to what do they amount? To suspicions, and suspicions only--suspicions
unnatural and improbable. Has a single act of participation in Burr’s
conspiracy been proved? Not to my discernment. Has any been suggested
to have been proved? I have heard of none. If any criminal act has been
committed, why do not gentlemen tell us what it is--in what it consists?
Why do they not put their finger upon it? I call upon gentlemen, I
challenge them to do it. That at least must be done, before I can convict
the accused of guilt.
Mr. ANDERSON said, when he moved the postponement of this business, the
day before yesterday, it was from a desire to collate the testimony;
which, having done, he was prepared to vote when he first took his
seat this morning, and had not intended to have taken any part in the
discussion of the subject. But, seeing that almost all the strong points
of circumstantial testimony had been either overlooked or not duly
appreciated by the gentlemen (Mr. HILLHOUSE and Mr. GILES) who had spoken
against the adoption of the resolution, and who had, withal, entered with
great warmth into the discussion, he felt himself bound, as a member
of the committee to whom the case of Mr. Smith had been referred, to
examine some of the prominent parts of the evidence, and to present it
impartially to the view of the Senate. Mr. A. said, in the course of his
examination of the evidence, he should not, as the gentleman who preceded
him had done, entirely discard the testimony of Elias Glover, but should
make that testimony, in its proper place, a part of the groundwork of
his observations, and support it by Mr. Smith’s own affidavit, and his
admission of parts of it in his answer to the committee. Mr. A. said,
in order to have a correct view of the case, it would be necessary to
recite sundry parts of the testimony--as, by combining and comparing
it alone, could the subject be clearly understood--and he would begin
with the evidence of Peter Taylor, (as being the first in order,)
who states that in the month of October, 1806, he was sent by Mrs.
Blannerhasset, to Lexington, after Mr. Blannerhasset, with a letter, to
prevent Colonel Burr from coming back with him to the island. That he
was ordered to call at Mr. John Smith’s. That he called at Mr. Smith’s
store and asked for him. When he came out, Taylor inquired for Colonel
Burr and Blannerhasset. Mr. Smith said he knew nothing of either of
them. That he, Taylor, must be mistaken as to the place where he was
to inquire. Taylor said he was right. That he was directed to inquire
for John Smith, storekeeper, Cincinnati; and asked Mr. Smith if he did
not recollect a young man that had come for Colonel Burr’s top-coat,
(greatcoat,) and informed Mr. Smith he had lived with Mr. Blannerhasset
three years. He says that, when Mr. Smith heard him talk so, he took
him up stairs, and asked him the news. Wanted to know what was passing;
what was said about General Wilkinson; and if he, Taylor, would carry
a letter from him to Blannerhasset, which he agreed to. Mr. Smith then
informed Taylor that he would find Burr and Blannerhasset at the house
of a Mr. Jourdan, at Lexington, where he found Mr. Burr, who, among
other inquiries, asked what letters he had? Taylor replied he had two;
one from Mrs. Blannerhasset, and one from John Smith, of Cincinnati.
The letter from John Smith, Mr. Burr allowed, was for him, (it was
directed to Blannerhasset,) but on Mr. Burr’s opening it, he found it
contained a letter for him. Having recited some parts of the testimony
of Peter Taylor, I shall proceed to make some observations thereon.
And here let me premise, that the general character of Peter Taylor
has, heretofore, stood the test of the strictest scrutiny at Richmond;
and, on a recent inquiry into his veracity and general character, the
counsel of Mr. Smith has found both so well sustained, that they have
not, in the course of their arguments, attempted to invalidate it, but
have contented themselves with pointing out some small mistakes, that
have not, in the least degree, lessened the validity of his testimony.
With this fair character, then, does Peter Taylor stand before you,
and his testimony must receive that portion of credit which is due to
established integrity. But notwithstanding the credit of this witness,
thus established, Mr. Smith, in his answer to the committee, denies
almost every thing that has been sworn to by Peter Taylor. We must then
believe, either that Peter Taylor, with all his fairness of character,
and totally disinterested, has sworn false respecting the conversation
with Mr. Smith, or that Mr. Smith in his answer to the committee, must
have denied what he knew to be true. Which are we to believe? I shall
make no comment. Every member of the Senate can form as correct an
opinion for himself upon this subject, as I could possibly express. Let
us now examine what the testimony of Peter Taylor amounts to against
Mr. Smith. Taken by itself, although it may excite strong suspicion,
perhaps no great criminality could attach to it; but, combine it with
many other circumstances, and it wears a different aspect. I pass over
the extraordinary conversation between Mr. Smith and Peter Taylor, and
come to the question asked by Mr. Smith. What was said about General
Wilkinson? Why is the name of General Wilkinson introduced by Mr. Smith?
The Senate will recollect that, in the deciphered letter, written by
Colonel Burr to General Wilkinson, which was read yesterday by the
honorable chairman of the committee, (Mr. ADAMS,) Colonel Burr tells
General Wilkinson that the contractor will supply provisions, to be sent
to such points as Wilkinson shall direct. Mr. Smith is the contractor
for supplying the army; and a strong inference would here arise that he
was the person meant by the term contractor; hence his question--What is
said about General Wilkinson? And this question, asked under the peculiar
circumstances which here present themselves, implies a knowledge of
Colonel Burr’s plans, which are developed by the communication General
Wilkinson made to the President, of the contents of the deciphered
letter. Add to these considerations, Mr. Smith’s first denying to Taylor
that he knew any thing about Burr or Blannerhasset, and shortly after,
when he found Taylor was a domestic of Blannerhasset’s, he directed
Taylor to the house in Lexington, where he would find Colonel Burr; and
they certainly excite a strong impression that Mr. Smith had a knowledge
of Colonel Burr’s plans and movements. It will be recollected that Mr.
Smith asked Taylor to carry a letter from him to Blannerhasset; but, from
the testimony of Taylor, it appears that the letter was for Colonel Burr.
The contents of this letter, and the answer thereto, are presented to
us, and from them arguments have been drawn to prove that Mr. Smith is
entirely innocent. But the very able elucidation which had been given of
those letters by the honorable chairman of the committee, (Mr. ADAMS,)
has not, I expect, left a very strong impression of the innocence of Mr.
Smith, either with respect to the tenor of the correspondence, or the
object of it. A very different construction has, however, been attempted
to be given to the contents of this letter, and the answer thereto, by
the gentleman from Virginia, (Mr. GILES.) Which will best comport with
the whole train of Mr. Smith’s conduct in relation to Colonel Burr’s
plans, the Senate will determine.
I shall now proceed to examine the testimony of Elias Glover, and I
think I can show that Mr. Smith’s own affidavit does most fully support
some of the most material parts of it; and it is worthy of remark, that
Mr. Smith, in his answer to the committee, admits more of the facts
sworn to by Elias Glover, notwithstanding the very bad character Mr.
Smith gives him, than he admits of the facts stated in Peter Taylor’s
deposition, whose character, with all the pains that have been taken to
invalidate it, yet remains untarnished. For this extraordinary procedure
it may be necessary to account. With respect to Peter Taylor, it will
be recollected, Mr. Smith had never admitted the material parts of the
conversation as stated by Taylor to have taken place. That Taylor’s
weight of testimony of course depended on his own character, and Mr.
Smith in his affidavit presented to the Senate, says, that he can prove
the falsehood of the statement of this witness. Thus was this man’s
testimony to be positively disproved, which however has failed. But
Glover’s could not be completely prostrated in the same way, because Mr.
Smith had on his oath admitted sundry of the facts stated by Glover, and
that at a time when Mr. Smith hardly calculated upon being arraigned
before the Senate under the present charge. It therefore became necessary
that Glover’s general character should be so completely destroyed by
positive swearing, as to disprove, if possible, even the very facts
which are fully corroborated by Mr. Smith’s own admission on oath. But,
Mr. President, when I look around, and observe that many of this body,
either on the bench or at the bar, have been much accustomed to compare
positive swearing with strong circumstantial testimony, I have not a
doubt, but that each of those different kinds of evidence will be duly
and deliberately estimated. I will now proceed to state some of the
material parts of Elias Glover’s testimony, and will afterwards compare
those parts with Mr. Smith’s own affidavit. In Glover’s deposition, he
states that on the 23d November he, in company with a friend, (this
friend appears to be William McFarland,) went to Mr. Smith’s, and had a
conversation with him, in which Mr. S. stated that Mr. Burr had disclosed
to him his object, which he had never fully done before--which was,
in the first place, should a war take place between the United States
and Spain, to head a corps of volunteers, and march into the Mexican
provinces; a great number of enterprising young men were engaged for that
purpose--that his preparations on the western waters were extensive--that
the plan had been long maturing, and expressed a full confidence in
Colonel Burr’s success. Mr. Smith said that his sons were going to
Orleans in a few days, and that he had consented that Colonel Burr should
there take them into his charge; he having assured him that he, Burr,
would provide well for them--he also said that Burr wanted the gunboats
he was then building. Mr. S. said he had not been well treated about
the boats he had before built. Mr. S. in his deposition sent to the
President, some time after the proclamation issued, states that when Burr
made his second visit to Cincinnati, in November, 1806, he disclosed his
plan fully to him as he thought. Being about to take his leave, he said,
Mr. Smith, my object in a few months will be known; you will not find it
dishonorable or inimical to this Government. Thus much I will venture to
tell you, if there should be a war between the United States and Spain,
I shall head a corps of volunteers, and be the first to march into the
Mexican provinces. In this statement of Mr. Smith, he fully confirms
the deposition of Glover; and he also admits that he agreed to let his
sons go with Colonel Burr. This is another very important point, which
goes to support the testimony of Glover. For how could Glover have known
this fact, but from Mr. Smith himself--for Mr. S. seems to have been so
cautious about communicating it, that from his own affidavit, made the
6th January, 1807, he swears that he never communicated it to his eldest
son until the Saturday preceding the 6th January. There is one point
of some importance, which Mr. S. though virtually, does not absolutely
deny, but evidently intends to deny it in his answer to the committee.
It is that part of Glover’s testimony respecting the gunboats, which
is supported by the letter of the Accountant of the Navy in answer to
one from the chairman of the committee. The accountant says, that Mr.
Smith had previous to November, 1806, built two gunboats for the United
States, and that from some change in the plan, there arose a difficulty
in fixing a proper valuation. Glover says Mr. Smith told him he had not
been well treated about them at Washington. I would ask how could Glover
ever have known that there had been the smallest difficulty about Mr.
Smith’s gunboats which he built for Government, if Mr. S. himself had not
communicated it. There is no great criminality in this communication,
but it certainly tends to prove substantially the conversation between
Mr. Glover and Mr. Smith. Thus, I conceive, have several important and
material parts of the testimony of Elias Glover been supported, and so
far as circumstantial testimony can tend to establish facts, is the
deposition of Glover entitled to credit.
It has been attempted to be shown, that Glover was a bitter enemy of
Mr. Smith, and affidavits to that effect have been produced, from which
it is inferred that no kind of communication whatever could, or had,
taken place between them. In the deposition of General Gano, it is
stated that, in the summer of 1806, Mr. Glover did, in an electioneering
conversation, make use of harsh epithets respecting Mr. Smith. But from
the deposition of Mr. Carr, at whose house Mr. Glover boarded, it appears
that Mr. S. did visit Mr. G. at his lodgings, and that he saw them
engaged in private conversation in the fall of 1806.
Mr. Dugan, who is stated to be a merchant at Cincinnati, deposeth that
he boarded in the same house with Mr. Glover, in the fall of 1806; that
he has seen Mr. Smith going to Glover’s lodgings, at the dusk of the
evening, and that Mrs. Carr, the landlady, frequently expressed herself
in the following terms: “I wonder what brings Mr. Smith so often to this
house after dark, and causes him to stay so long in Mr. Glover’s room?”
or words to that effect. Now, if we believe these witnesses, and we have
no reason to doubt their veracity, there certainly must have been a very
good and intimate understanding between Mr. Smith and Mr. Glover in the
fall of 1806, and this will account for Mr. Smith’s free communication
to Mr. Glover; and the deposition of William McFarland proves the
conversation between Mr. S. and Mr. G. to be substantially correct;
and as Mr. Smith has fully proved that Glover and McFarland were both
concerned in Burr’s plans, it will remain with the Senate to say whether
it has not also been proved that Mr. Smith was likewise concerned. I
shall take a very short view of Mr. Smith’s journey to Frankfort, at the
time he saw Col. Burr there, shortly after the conversation which has
been stated to have taken place at Mr. Smith’s own house, with Glover and
McFarland. Some business led Mr. S. to Lexington, where he was informed
by a Mr. Jourdan, that if it was known he (Smith) was there, he would
be summoned as a witness against Colonel Burr, who it was said was at
that time arraigned at Frankfort. Mr. S. said that he was willing, and
that he knew nothing of the business. A similar conversation passed
between Mr. S. and a Mr. Kelly, by which it appears that Mr. Smith did
go to Frankfort on his own business; that for want of General Adair, Mr.
Burr’s trial before the grand jury was delayed; but Mr. Smith said he
could not be detained at Frankfort from his business, particularly as he
knew nothing that would either criminate or exculpate Colonel Burr. Thus
we see Mr. Smith denying any knowledge whatever of Col. Burr’s plans,
although he had acknowledged that Colonel Burr had disclosed his views
to him; and the charge then against Colonel Burr was, an intention to
invade the Spanish provinces. Mr. Smith’s testimony, had it been given,
would certainly have thrown much light on the subject, and might have
put a complete stop to all the future consequences which created so much
agitation throughout every part of the continent.
In about ten days after this affair happened, on the evening of the
sixteenth December, Mr. Smith told Mr. Token, as appears by his
deposition, that he never believed Colonel Burr to be engaged in
hostility against the United States, until he saw the President’s
proclamation. Until then he believed, as we had been in expectation of a
war with Spain, that if Colonel Burr was engaged in any enterprise, it
was under the protection, and with the advice of our Government. About
the same time, Mr. Smith makes a similar communication to Mr. Gano, who
inquired of him if he was acquainted with Burr’s designs and mysterious
movements in the Western country. Mr. Smith said he had endeavored to
find out, but could not, further than they were honorable, and would be
approved by the United States; that he was going to settle his Washita
lands, and would, if a war should take place between Spain and the United
States, be ready to embark in it, and that many who were now his enemies,
would then be glad to call him their friend. Major Riddle states that he
had the command of the militia that were called out to stop Burr’s boats;
that he was stationed near Mr. Smith’s house, and had instructions from
his superior officer to try to find out whether Mr. S. knew any thing of
Burr’s affairs, and what he knew; and that, in one of the conversations
had with him, Mr. S. said he knew more of Burr’s concerns than any man in
the State of Ohio, but one. Those various declarations thus made by Mr.
S. at several different times, and under different circumstances, appear
to be entirely inconsistent with one another. We see by the testimony of
Jourdan and Kelly, that Mr. Smith declared that he knew nothing about
Mr. Burr’s business, and nothing that could criminate or exculpate him.
We have seen what Glover stated of what Mr. Smith communicated to him;
we have seen that statement confirmed by Mr. Smith’s own affidavit,
sent to the President; and we now see what Mr. S. has declared to Mr.
Token and Mr. Gano; to the former he says, that if Burr was engaged in
any enterprise, it was under the protection, and with the advice, of
our Government; this was the very language Mr. Burr himself held out to
induce the unwary and unsuspecting to join him. To Mr. Gano, Mr. Smith
says, he had endeavored to find out Burr’s plans, but could not, further
than that they were honorable, and would be approved by the United
States; and to Major Riddle he says, he knew more of Burr’s plans than
any man in the State of Ohio, but one. These three last conversations
took place about ten days after Mr. Smith had declared to Jourdan and
Kelly, that he knew nothing of Burr’s business, or any thing that could
criminate or exculpate him. How are these various declarations of Mr.
S. to be reconciled? At one time he says he knows nothing of Burr’s
affairs; ten days after, he says he knew more of his concerns than any
man in the State of Ohio, but one; and goes so far as to say, that if
Burr was engaged in any enterprise, it was under the protection, and
with the advice, of our Government; and all this after Mr. Burr had
told him that he had been persecuted in this Government, shamefully
persecuted, and that, in it, all private confidence between man and man
seemed to be nearly destroyed. Could, or did, Mr. Smith believe that
the Government countenanced any of the plans of Mr. Burr? It appears to
me impossible. What, then, could induce him to make such a declaration,
and at different times? Did Mr. S. believe that the Government would
give its sanction to an illegal act? For, as a member of the National
Legislature, he must have known that it was not authorized by law, and
that the President would not dare, in violation of the constitution,
(even if had ever so great an inclination,) to countenance an enterprise
that would inevitably involve our country in war. And did Mr. S. believe
that the Administration had such unbounded confidence in Mr. Burr as to
intrust him with so important an expedition at that critical period? Yet
these things we must believe, if we believe Mr. Smith sincere in his
declaration; and if we do believe him sincere in saying that if Mr. Burr
was engaged in any enterprise, it was under the protection, and with the
advice, of our Government, we must believe that he was conversant with
Mr. Burr’s plans, which must have been very plausibly impressed upon him
indeed, to have induced him to have formed so extraordinary an opinion.
Mr. POPE.--It is with reluctance that I rise at so late an hour to
express the reasons which will influence my vote. The very able and
luminous view which my honorable friend from Virginia has taken of this
subject will supersede the necessity of many additional remarks from me.
The counsel of Mr. Smith have opposed the resolution on two grounds:
First, that the Senate have no jurisdiction in the case; second, that the
evidence does not warrant its adoption. Although I have dissented, and
still dissent from the opinion of other gentlemen in their application
of some of the principles laid down in the report of the committee, I
concur with them on the general ground of jurisdiction. Their arguments
on this point were very plausible and ingenious. They have contended that
the Senate has no power to inquire into any offence of which one of its
members may be accused, that is cognizable in a civil court of criminal
jurisdiction. Every man is equally amenable to the general laws of the
land, and liable to be prosecuted and punished in the civil courts; but
when a man is clothed with a legislative character, he is placed in a new
relation; and, besides being amenable to the judicial tribunals of his
country, he becomes, to a certain extent, responsible for his conduct
to that body to which he belongs; and that body has a power to inquire
into it, without the aid of a civil court. Whenever a member of this
House shall be charged with a crime punishable by the general laws of
the country, it may be a question worthy of consideration, whether to
refer it to the civil court, or to have it examined before this body. On
this question, the reasoning of the counsel, when addressed to the sound
discretion of the Senate, would merit attention. If, however, the Senate
should deem it necessary or expedient to make the inquiry, I entertain no
doubt of its power to do so.
I will add nothing more on the subject of jurisdiction, but proceed to
consider whether the resolution is supported by the evidence before
us. The gentlemen for and against the resolution who have preceded me,
seem to consider Glover discredited, and in their arguments, have laid
his affidavit entirely out of the case. I shall not inquire into the
credibility of this witness, after the solemn protest I have so often
made against the use of ex parte testimony, either to criminate the
accused, or to impeach the characters or credibility of the witnesses;
the Senate must be satisfied that I should be very unwilling to bottom
my vote on such testimony. My mind revolts at the idea of pronouncing
a man guilty of an infamous crime upon a private ex parte affidavit,
especially of a private conversation, so liable to be misunderstood, and
so impossible to be disproved. The precedent would be a monstrous one,
and the first, I believe, known in this country. I cannot give my vote
to sanction it. We are called upon to declare to this nation, that Mr.
Smith has been guilty of participating in the conspiracy of Aaron Burr
against the peace, liberties, and union, of the people of these States.
To authorize us to pronounce the sentence, one of two things ought to
appear; either that he has committed some treasonable act, or that
Burr’s treasonable project was disclosed to him; and that he connived
at, or improperly concealed it; for, I presume, it will be conceded
that it should appear that Mr. Smith has been guilty of some act of a
treasonable nature. Glover was the important witness against Mr. Smith
before the grand jury at Richmond, and his testimony has been deemed very
material during the present investigation. If his affidavit is abandoned,
I would thank some gentleman to specify the evidence which proves Mr.
Smith guilty of committing or concealing any thing treasonable. We are
told, however, that, although no particular part of the evidence, or no
single link in the chain proves his guilt, yet the whole circumstances
combined make it sufficiently manifest. I must confess that many
circumstances, which do not appear to have any necessary connection with
each other, have been put together with great ingenuity, and from them
strong inferences drawn unfavorable to Mr. Smith. After exhibiting this
chain in its most plausible and imposing attitude, I believe gentlemen
will be at a loss to inform us what is the result, or what particular
part, if any, it proves Mr. Smith has performed in this conspiracy of
Burr. My friend from Virginia has well explained the circumstances
stated by Peter Taylor. Peter Taylor may be mistaken in some of the
circumstances, but, admitting the whole to be true, there is nothing
incompatible with innocence. It is evident that Mrs. Blannerhasset’s
sending Peter Taylor, the letter from Smith to Burr, and Burr’s
answer, were not the result of any previous concert, but grew out of
the circumstances of the moment. The conversation mentioned by Colonel
Taylor has been much relied on. I have, from personal acquaintance, as
well as from character, too much confidence in the honor and veracity of
Colonel Taylor, to suspect, for a moment, that he would intentionally
misrepresent; but if the testimony of Doctor Sellman is to be regarded,
we might be induced to suppose it possible that Colonel Taylor either
did not apprehend Mr. Smith’s meaning correctly, or that he did not hear
the whole of his observations. I am not, however, convinced that Colonel
Taylor has been mistaken. I disapprove, very much, the dissemination of
such sentiments; it tends to weaken the bond of union, but it cannot,
surely, be deemed an infamous or criminal act, which will constitute a
ground of expulsion. It is worthy of remark, that almost the whole of
the testimony against Mr. Smith relates to conversations; a species of
testimony which should be received with great caution. I beg leave to
remind gentlemen of some circumstances which have occurred in this city
during the present session. Conversations, which have been repeated on
the same or the day after they took place, have been understood, and
represented differently, by different gentlemen who were present. The
gentlemen who have advocated the expulsion of Mr. Smith, have relied
principally on Mr. Smith’s own statements. If Mr. Smith’s explanation of
his own conduct is to be resorted to, the whole should be taken together.
It would be very unfair to garble it. However improper or dangerous it
may be considered, to permit a man to prepare the means of a military
expedition against a foreign government, without the authority of his
own, Mr. Smith’s explanation in his answer, his conduct and declarations,
after the President’s proclamation arrived at Cincinnati, his letter to
the Secretary of War, of the 14th of December, 1806, afford a strong
presumption that he had no criminal intentions. In his letter to the
Secretary of War, he stated that, about two weeks before he had called on
Burr, then at Cincinnati, and requested to know his object; Burr answered
that, in the event of war with Spain, which he deemed inevitable, he
would head a corps of volunteers, and march into Mexico; but if peace
should be preserved, which he did not expect, he would make a settlement
of lands. This was the only disclosure, if it may be called one, which it
appears was ever made to him, and this he communicated to the Government
two weeks after he received it; but observes, in his letter, that Burr
had expressed himself with apparent frankness and candor, that he could
not believe that he was engaged in any criminal project. Inasmuch,
however, as the President had issued his proclamation, he presumed he
must have more information than himself, and considered it his duty to
enforce it.
All parties about Cincinnati seem to agree that Mr. Smith was one of
the most active and efficient men in arresting the progress of the
expedition. He procured the public arms on his own responsibility, and
put them in the hands of the militia. It has been said that he pursued
this course to blind the people, and not from patriotic motives; this
is uncharitable indeed. If Mr. Smith had disregarded the warning of
the President and discountenanced an attempt to stop the expedition,
such conduct would have been relied on as very strong evidence of his
connection with Burr; so, that, whether he was active or passive, his
conduct, after suspicion had alighted upon him, would have been equal
evidence of his guilt. Whatever may have been Mr. Smith’s confidence in
Burr previous to the arrival of the proclamation, it is evident that he
abandoned him the moment he was denounced by the Government. If it be
true, as has been alleged, that Mr. Glover was a partisan of Burr’s,
it is strange, if Mr. Smith was also concerned, that Mr. Smith and Mr.
Glover should have conducted themselves so differently after the arrival
of the proclamation; and it appears to me very extraordinary that Mr.
Glover, if he had been initiated into the secrets of Mr. Burr’s projects,
should, in his communications to the Government, have implicated no
person except Mr. Smith, who had been so active in defeating them. Can
it be seriously contended that Mr. Smith’s hospitality to Burr and his
confidence in him is evidence of his criminal participation? Surely not.
If such circumstances are deemed sufficient to prove a man a traitor
to his country, hundreds of innocent persons might be implicated. When
Mr. Burr was in the Western country in the fall of 1806, I thought, and
still think, that the charges made against him in the public prints,
and in court by the attorney of the United States, if not sufficient to
convict him of crime, ought at least to have put us on our guard, and
I considered any attempt under these circumstances to give eclat, or
to turn public opinion in his favor, imprudent and improper; but, sir,
I should not feel myself authorized to pronounce every man a traitor,
who treated Mr. Burr with respect, before the President’s proclamation
reached that country. The gentleman from Tennessee has contended that we
ought not to require the same evidence that would be requisite to convict
a man of treason before a petit jury. No position, received in the
light in which this appears to have been considered by many during the
present investigation, is more fallacious or dangerous; that we are not
bound by the forms or technicalities of the law, I admit; but I contend,
with confidence, that the Senate of the United States, when called upon
to declare the existence of a fact, are as much bound by justice and
conscience to require proof of it, as any other tribunal. A court and
jury would not perhaps require the proof to be as clear and conclusive in
a case where the sum of twenty pounds only was in dispute, as in a case
of life and death; and it may be said, with at least some plausibility,
that we ought not to be as scrupulous on the present occasion, where
reputation only is involved, as if life was at stake. The difference
consists, not in the tribunals which decide, but the importance of the
questions to be decided. In every case where a fact is in question, the
triers or judges ought to require convincing evidence of it before they
assert it. It has been said that if odium or suspicion has attached to
a man’s character, he ought to be expelled. This ground, if tenable,
cannot be relied on in the present state of this question. If this was
a proper ground of expulsion, we should have expelled Mr. Smith when he
first presented himself here in November last, on account of the odium
which had attached to his character by the finding of the indictments
at Richmond; but this ground was abandoned. It was decided by this
Senate that Mr. Smith was entitled, on the principles of justice, to an
opportunity of controverting the charges against him before he should be
banished from this House. We have proceeded to inquire into the fact. The
question now to be decided is not whether he is a suspicious character,
but whether he is proved by the evidence before us to be guilty of
crime. I cannot act upon suspicion, or mere conjecture. I will not
bottom my vote upon any thing which does not present itself in the shape
of substantial evidence. Were I a citizen of the State of Ohio, mere
suspicion or distrust of his integrity, or the circulation of opinions
which I disapproved, might be a sufficient reason to me to withdraw my
confidence from Mr. Smith, to refuse him my suffrage; very different
is my situation. It does not depend on my choice or opinion, who shall
represent the State of Ohio in this Senate. I do not feel myself
authorized to deprive Mr. Smith of his seat here, until he is proved to
have been guilty of some infamous or disgraceful conduct.
Mr. CRAWFORD had determined to take no part in this discussion. The
exposition which the subject had received from the gentleman from
Massachusetts, was so clear, so comprehensive, and at the same time so
candid, as to supersede the necessity of any remarks from him. He felt,
however, constrained to make a few remarks in reply to the gentleman
from Virginia. The Senate has been told by that gentleman, that its
dignity has been assailed by the depositions taken on the part of Mr.
Glover, in support of his credibility, that they have been procured on
the presumption that this body is to be governed by political prejudices.
If this objection is well founded, it applies with equal force to the
conduct and testimony of Mr. Smith. From the first to the last word of
Mr. Smith’s answer, he endeavors to impress upon this body the zeal
with which he has been devoted to the present Administration. In the
deposition of every witness examined by Mr. S. as to his own conduct, the
witness is questioned upon that point--his zeal for the Administration
is the principal point which he labors to establish. If then the dignity
of the Senate is assailed by Glover, it is equally so by Mr. Smith.
Another, very convenient method of destroying the force of the
depositions inculpating Mr. S. has been adopted by the gentleman from
Virginia, and also from Kentucky. We are first told, that they have been
taken without proper notice to Mr. Smith; but as many of Mr. Smith’s
depositions were taken in the same manner, and liable to the same
objection, it was necessary to find some other objection to them, and
especially to Mr. Riddle’s deposition. What, sir, is this formidable
objection to his deposition? One, sir, which if well founded must be
effectual. We are gravely told, sir, if Mr. Riddle is an honest man, and
not connected with A. Burr, that Mr. S. would never have disclosed his
views to him; and that if he was one of Burr’s associates he cannot be
an honest man, and therefore is not entitled to credit. This sir, is a
two-edged sword, which is destructive to the credit and reputation of Mr.
Riddle indeed; and the same candid mode of reasoning would be equally
destructive to the reputation and credit of any other man. If the witness
is an honest man, you are not to believe him, because Mr. Smith would not
be so foolish as to disclose his views to him; and if he is a dishonest
or suspicious character, to whom Mr. Smith might safely disclose his
iniquitous plans, then you must believe him, because of his suspicious
character. This reasoning may be ingenious, but it certainly has nothing
in it of sincerity and candor.
The gentleman from Connecticut cannot believe that A. Burr ever disclosed
his projects to Mr. Smith, because all the persons to whom he disclosed
them, were inimical to the Administration. It is true that in the
Atlantic States, at least east of the Alleghany mountains, that artful
traitor addressed himself to persons who were in a state of enmity
with the Government, and to no other. He applied to General Eaton, who
believed he had just cause of complaint against the Administration;
who believed he had suffered absolute injustice at their hands. For
the same reason he applies to Commodore Truxton. But, sir, trace him
from Philadelphia to Pittsburg--view his conduct on the western side
of the same mountains. What is his conduct there? What is his conduct
and conversation with the Morgans? His conduct and the motives of his
conduct are changed. Here he endeavors to convince every man that it
is the interest of the Western country to separate from the Atlantic
States. Here he addresses himself to the most respectable and influential
characters, who stood high in the estimation of the public, who had no
cause of complaint against the Administration. The Morgans were not
anti-ministerialists--they were respectable, they were influential;
it was therefore important to obtain their countenance and support.
Blannerhasset was a man of wealth and talents, and of easy credulity.
He is applied to and secured. The next we hear of Aaron Burr is at the
house of Mr. Smith. This gentleman stood high not only in his own State,
was not only a Senator of the United States, but also a contractor
for furnishing the army of the United States. It was an object of the
highest importance to the success of Aaron Burr’s plans to obtain his
aid and co-operation. But we have been told that it is improper in the
investigation of this subject, to introduce the acts and sayings of Aaron
Burr. If this is correct, there is an end of the question. After deciding
this point, it was wholly unnecessary for the gentleman from Virginia to
have performed the herculean labor which he afterwards attempted. How,
sir, is it possible to convict John Smith of a participation in the views
or plans of Aaron Burr, if the sayings and acts of Aaron Burr are to be
excluded from the investigation? It is impossible, sir. If this attempt
to keep out of view the words and actions of Aaron Burr had been made by
an advocate in a criminal court, it would justly be entitled _a coup de
main_. Aaron Burr had the strongest possible inducements to seduce Mr.
Smith and to obtain his countenance and assistance. He was contractor
for your army. He could procure supplies for his men, and the then
situation of your army was such, that the supplies procured and sent by
the contractor might with equal facility be converted to the use of Aaron
Burr or applied to the support of the legitimate army. The procurement of
supplies in sufficient quantity for Burr and his men by any other person,
would have excited suspicion, and created alarm. He arrived at Mr.
Smith’s on the 4th September and remained an inmate of his house until
the 9th or 10th, and yet Mr. Smith says he never mentioned to him any of
his designs or plans, not even of the settlement of Washita lands. This
he asserts in his letter of the 14th December to the Secretary of War.
On the 6th January afterwards, he says and swears that Burr did during
his first visit mention the settlement of those lands. Yet the gentleman
from Virginia not only discovers no contradiction between the oath and
letter, but thinks he discovers strong evidence of their consistency and
agreement. To me, sir, there appears a direct and palpable contradiction.
On the 23d of October Peter Taylor arrives at the house of Mr. Smith
and inquires of him, at his own door, whether he knew anything of Burr
and Blannerhasset. “He allowed he knew nothing of them; that I must
be mistaken; this is not the place; I said no, this was the right
place,” “Mr. Smith, storekeeper, Cincinnati.” “Sir, I have lived with
Blannerhasset for three years.” Mr. Smith then took him up stairs, or
he followed him up. He then made inquiries which tend strongly to prove
that he was one of Burr’s confidants, and gives Peter Taylor the very
information he had asked, and the very information of which he had just
before declared his ignorance. The testimony of this man is admitted by
every one to be worthy of the highest credit. I shall therefore leave to
the gentleman from Virginia the rugged task of proving the innocence of
Mr. Smith without impeaching Peter Taylor’s veracity.
That Mr. Smith should write a letter to Burr and direct it to
Blannerhasset has been satisfactorily explained. But it is not easy to
explain, nor has it been explained, by what means Burr could devise that
the letter directed to Blannerhasset was a letter written to him, or
contained a letter for him. The construction which this transaction, and
the letters written by Mr. Smith and Burr to each other, have received
from the gentleman from Massachusetts, is the only candid and rational
construction of which they are susceptible.
The Senate have been cautioned not to lay much stress upon the testimony
of Colonel James Taylor, not because he is unworthy of credit, but
because he deposes to a conversation which has long since past, and
because Dr. Sellman was present and heard no such expressions. Sir,
I believe the deposition of Colonel James Taylor contains not only a
perspicuous declaration of what he believed, but also a correct statement
of facts; a correct statement of what he heard. His deposition, it is
true, was made long after the conversation happened; but shortly after
that event he reduced it to writing, and communicated it to the Secretary
of State, and to that writing he referred when under examination before
the Senate. He also swears he conversed with General Findley, and
that his understanding of that conversation was the same. Compare the
circumstances under which Colonel Taylor testifies, with those which
attend Dr. Sellman’s deposition. If he was present at all, it does
not appear that any circumstance whatever occurred to impress that
conversation upon his mind--it does not appear that he ever thought of
it afterwards, until he was called upon to depose, which was more than
fifteen months subsequent to the conversation; but it does appear that
Dr. Sellman has acted the part of a partisan of Mr. Smith’s. In truth,
sir, there is not a single circumstance tending to confirm his statement
of that conversation, in opposition to that of Colonel James Taylor.
I agree with the gentleman from Massachusetts, that it would be improper
to declare a member of this body unworthy of his seat for the expression
of mere speculative opinions; but the expression of these opinions,
connected with other circumstances which preceded, and followed after it,
amounts to very strong proof. We are called upon by the gentleman from
Virginia, and also from Kentucky, to lay our fingers upon that particular
part of the testimony which produces conviction in our minds, of the
guilt of Mr. Smith. To this call, sir, I will observe that in all cases
of circumstantial evidence, convictions are the result of a combination
of circumstances; they are not produced by any one link in the chain of
testimony, but by the whole chain taken together. If, sir, a conviction
could not take place in a court of justice unless the jury could put
their fingers upon the particular part of the testimony which established
the guilt of the accused, it might happen that in nine cases out of ten
the culprit would be acquitted.
My friend from Kentucky says, if John Smith has participated in Burr’s
treasonable and unlawful projects, it must have been by performing some
act or in concealing it--that he is not charged with having performed any
act, and that therefore the charge must be founded on his concealment
of what he knew. I will not say that Mr. Smith has been charged with
enlisting troops for Aaron Burr; but, sir, I will say, that he has been
guilty of an act very much like it--an enlistment of the strongest
character--an engagement or an enlistment of his two sons to go with
Aaron Burr--to march under his banner--subject to his control, under
his absolute government, dependent upon him for their future prospects
and station in life. And here, sir, I refer to the deposition of Mr.
Smith himself. He swears, that Aaron Burr did at his second visit to
Cincinnati, disclose his views of invading Mexico; and yet, sir, he
engaged his sons in the enterprise.
But, sir, there is one point in the testimony, which of itself
produces something like conviction on my mind, that Mr. S. was guilty
of participating in Burr’s plans. And here, sir, I will refer to the
deposition made by Mr. Smith, and that of A. D. Smith already referred
to by the gentleman from Tennessee, for a different purpose. Mr. S.
swears that he never communicated to his son the engagement with Burr
until the day he returned from Marietta, and not till he had expressed a
disinclination to co-operate with Colonel Burr’s object. This deposition
was made on the 6th January, 1807, and by a deposition of A. D Smith of
the same date, it appears he returned from Marietta on the 3d day of
that month. It also appears in evidence, that for some time previous to
this day, Mr. Smith had been in Kentucky, and that during that time A.
D. Smith had become the bearer of a letter to Blannerhasset from Burr,
and for that purpose had gone to Marietta and Belle Pre; and that the
3d of January was the day he met his father on his return. But A. D.
Smith on the 13th August, at Richmond, swears, that he never received
any overtures from Burr on that subject; yet he considered himself as
engaged under him, for he says--“From the papers which daily teemed
with the treason of Colonel Burr’s designs; the frequent solicitations,
and injunctions of my father, to relinquish the idea of descending the
Mississippi as an accomplice of Colonel Burr’s; and General Eaton’s
deposition, alone induced me to abandon him and his projects.” Here,
sir, the son declares he did not engage himself with Aaron Burr, yet
he was engaged; he knew that he was engaged, and reluctantly broke
that engagement. The father swears he engaged him; but that he never
disclosed that engagement to him until he expressed his disinclination to
go. From whom did A. D. Smith receive the knowledge of this engagement?
The answer is too plain; from his father, and not communicated to him on
his return from Marietta, but before he set out for that place; before
the father set out for Kentucky; and a knowledge of this engagement is
the only probable reason of his becoming the bearer of that letter.
But, sir, there is another contradiction which ought to be noticed
here. A. D. S. and his father met on his return from Marietta, and the
frequent solicitations and injunctions of the father induced the son
to abandon B.; yet the father swears he never disclosed the engagement
he had made until the son had expressed a disinclination to go with
B. This expression of Mr. S.’s is a contradiction in itself; but when
compared with the declarations of the son, the contradiction is gross
and palpable. How could he solicit and enjoin his son to violate an
engagement which he knew nothing of? Sir, it is impossible to reconcile
these contradictions. Upon this occasion my mind has received no bias
whatever from the conversations and whispers alluded to by the gentleman
from Kentucky. I have lived in a section of the country that has not
felt the general impression made by the movements and enterprises of
Aaron Burr. I have attended to nothing but the testimony. I have had no
acquaintance with Mr. Smith; I entertain no prejudice against him. I
should feel as much gratified as any member of this body, to be able,
consistently with my duty, to vote for his retaining his seat. Sir, the
feelings of this House have been addressed--an appeal has been made
to the humanity of the Senate. We have a duty to discharge which is
paramount to humanity; instead of resigning ourselves to our feelings,
we ought to exercise our judgment, and do that which the public good
imperiously requires. From a full examination of the evidence, I am
constrained to say, that the conduct of Mr. Smith has been such as to
render it highly improper for him to retain his seat in the highest
council of the nation.
The question was now taken to agree to the resolution, and determined
in the negative, two-thirds of the Senators present not concurring
therein--yeas 19, nays 10, as follows:
YEAS.--Messrs. Adams, Anderson, Condit, Crawford, Franklin,
Gaillard, Gilman, Gregg, Kitchel, Maclay, Mathewson, Milledge,
Moore, Robinson, Smith of Maryland, Smith of Tennessee, Sumter,
Tiffin and Turner.
NAYS.--Messrs. Giles, Goodrich, Hillhouse, Howland, Pickering,
Pope, Reed, Smith of New York, Thruston, and White.[54]
MONDAY, April 11.
_Resolved_, That the President of the Senate and the Speaker of the House
of Representatives, be authorized to adjourn their respective Houses on
Monday the twenty-fifth day of April instant.
_Ordered_, That the Secretary notify the House of Representatives
accordingly.
TUESDAY, April 12.
_Removal of Federal Judges upon Address from Congress._
Mr. ADAMS stated that he, together with his colleague, were instructed
by the Legislature of the State of Massachusetts, to use their best
endeavors to procure such an amendment to the Constitution of the United
States, as will empower the President of the United States to remove
from office any of the judges of the courts of the United States, upon
an address to him made for that purpose, by a majority of the House of
Representatives, and two-thirds of the Senate, in Congress assembled.
On motion, by Mr. ADAMS,
_Ordered_, That the instructions be referred to the committee appointed
the 25th of January last, on the subject of amendments to the
constitution, to consider and report thereon.
_Amendment of the Constitution--President by lot from among the Senators._
Mr. HILLHOUSE.--The situation of the United States at the time of the
meeting of the Convention for forming the constitution, I well remember,
and it will be recollected by every member of this Senate, to have been
such as to excite the anxious solicitude of every considerate man in our
country. External pressure being removed, the recommendations of Congress
had ceased to have effect on the States. We were a nation without credit
and without resources; or rather without the means of drawing them
forth. Local policy began to operate in a manner that tended to excite
jealousy and discontent among the States; and there was reason to fear
that we were exposed, and at no remote period, to all the calamities
of civil war. Under these circumstances, the present constitution was
promulgated, and was eagerly seized on by the great body of the people,
as the palladium of our liberties, and the bond of our Union. I was of
the number of those who approved it, though some parts of it appeared
to me mere theories in the science of Government, which I hoped in the
experiment would prove salutary; but my expectations were not sanguine.
Before I proceed with my explanatory remarks, I must take the liberty of
stating, that in using the terms monarchy, aristocracy, or democracy, I
do not use them as the cant words of party; I use them in their fair,
genuine sense. The terms Federalist and Republican, I do not use by way
of commendation or reproach; but merely by way of description, as the
first names of individuals, to distinguish them from others of the same
family name.
Federalists and Republicans never divided upon the elementary principles
of government. There are very few Americans who are not in principle
attached to a free republican government; though they may differ on
minor points, and about the best mode of organizing it. Persons attached
to monarchy or aristocracy are few indeed; they are but as the dust in
the balance. No one in his sober senses can believe it practicable, or
politic if practicable, to introduce either. If ever introduced, which
God forbid, it must be done at the point of the bayonet.
It is well known that the denominations of the parties, called
Federalists and Republicans, were applied, the former to those who
supported, the latter to those who opposed the two first Administrations
formed under the Federal Constitution. Those who opposed those
Administrations, wishing to obtain the governing power, and disliking
the name of Anti-Federalists, given to the first opposers of the
constitution, assumed the more popular name of _Republicans_. It cannot
be expected that a politician, when he has made himself up for a
political ball or masquerade, will exhibit his true character. Many of
the most florid speeches are made more with an eye to the people, than to
the body to which they are addressed. To find the true character of man,
you must look to his homespun, everyday dress; if you do this, will you
not find a full proportion of good Republicans, as they are called, who
exhibit no more of that virtue called humility than their neighbors, and
who manifest no greater regard for equal rights? The supposed differences
are more imaginary than real. Names may, and sometimes do, deceive
ignorant, uninformed individuals; but these names now scarcely do that.
Some of the important features of our constitution were borrowed from a
model which did not very well suit our condition: I mean the Constitution
and Government of England, a mixed monarchy, in which monarchy,
aristocracy and democracy, are so combined as to form a check on each
other. One important and indispensable requisite of such a Government is,
that the two first branches should be hereditary, and that the Monarch
should be the fountain of honor and source of power. In the United
States, the people are the source of _all_ power.
Placing in the hands of the Chief Magistrate, who depends on a popular
election, prerogatives and powers in many respects equal, in some,
exceeding in practice those exercised by the King of Great Britain, is
one of the errors of the constitution. This error can be corrected only
in one of two ways; either the office must be stripped of those high
prerogatives and powers, and the term of holding the office shortened,
or some other mode devised, than a popular election, for appointing
a President: otherwise, our country must perpetually groan under the
scourge of party rage and violence, and be continually exposed to that
worst of all calamities, civil war.
I am aware I have engaged in a difficult undertaking. I have to oppose
deep-rooted prejudices and long-established opinions, which will be
abandoned with reluctance. I have to contradict favorite theories, long
ago adopted, and still strenuously maintained. It is therefore to be
expected that arguments which go to destroy the former, or contradict the
latter, will be admitted with caution, and listened to with a reluctant
ear. Some of the amendments, when first presented to my mind, made but a
slight impression, and I was disposed to pass them by as impracticable or
ineffectual; but experience and mature reflection have satisfied me both
of their correctness and importance.
I am aware that the amendments will not be approved by many individuals
in this nation, under an apprehension of their tending to lower the
tone and energy of the Government. They will be denounced by all office
hunters, demagogues, and men of inordinate ambition, more anxious for
their own elevation to office than for the public good. All artful
men, who rely more on their dexterity and skill in intrigue, than upon
honest merit, to secure an election, will raise their voices and cry
aloud against them. They will describe them as utopian and visionary;
as departing from the elective principle; and as lowering the dignity
and character of the Government. But the great body of the people,
who compose that portion of the community which can have no views or
interests incompatible with the general welfare, which can have no other
wish or desire than to see the nation prosper, and which the feelings
of nature would stimulate to do what would advance the prosperity and
happiness of future generations, will, I flatter myself, lend a listening
ear, and grant me a candid and patient hearing. I must also be permitted
to indulge the hope, that, in this honorable body, the amendments will
not be hastily rejected; nor until they shall have undergone an attentive
and critical examination.
A prominent feature of the amendments is, to shorten the term of service
of the President, Senators, and Representatives; observation and
experience having convinced me, that in an elective Government, long
terms of office and high compensations do not tend to make independent
public servants, while they produce an anxious solicitude in the
incumbents to keep their places; and render seekers of office more eager
to obtain them, and more regardless of the means.
My first amendment goes to reduce the term of service of the members of
the House of Representatives to one year.
No inconvenience can arise from this arrangement; because there is a
constitutional provision that Congress shall assemble once in every year.
That body, composed of the immediate representatives of the people,
ought to exhibit a fair representation of their sentiments and will;
and, coming fresh from the people to the Congress of each year, will, it
may be presumed, fairly express such sentiments and will. And if, in an
interval from one session of Congress to another, there be a real change
of public sentiment, why should not that change be expressed? Will an
attempt in their Representatives to resist it, tend to tranquillize the
public mind? or will it not, like persecution in religion, tend to make
proselytes to their sentiments?
Constitutions, except so far as they are necessary to organize the
several departments of Government, and bring the public functionaries
into a situation to deliberate and act; and, in the General Government,
to draw the line of demarcation between that and the State governments,
to prevent interference and collision, are of little avail; and present
but feeble barriers against the public will. Whenever a measure is
understood and believed to be necessary to promote the general welfare,
the people will not fail to effect it. If they cannot, by construction,
get round the constitution, they will, by an amendment, go directly to
their object. Of the truth of this, experience has furnished ample proof.
The danger is, that by attempting to extend constitutional restrictions
too far, unnatural and mischievous exertions of power may be produced.
By the second amendment, the term of service of the Senators is to be
reduced to three years; one-third to be chosen each year.
The Senate, I am aware, may be surprised, and perhaps feel some
displeasure, that one of their own body should propose an amendment,
which, in the estimation of some, may tend to lessen their dignity, and
destroy their independence. Did I believe this, I should be the last to
offer it. If the Senate will hear me patiently, I think I can show that
it will produce no such effect.
Senators represent the rights and interests of States in respect to their
sovereignty. In them, therefore, the States ought to feel a _confidence_.
And this confidence will rather be increased than lessened by shortening
the term of service to three years. Shall I be told that the Legislatures
of the States are not to be relied on for their _stability_ and
_patriotism_? that it would be unsafe, every third year, to trust them
with the appointment of their Senators? No, surely. The several States
are the _pillars_ on which the Constitution of the United States _rests_,
and _must rest_. If these pillars are not sound, if they are composed of
feeble, frail materials, then must the General Government moulder into
_ruin_. This, however, is not my belief. I have confidence in the State
Governments. I am for keeping them in their _full vigor_ and _strength_.
For if any disaster befalls the General Government, the States, having
within their respective spheres all the power of independent Governments,
will be the arks of safety to which the citizens can flee for protection
from _anarchy_, and the horrid evils which follow its train. I have
therefore uniformly been opposed to measures which had the remotest
tendency to their consolidation.
When I shall have stated the next amendment, it will be found that my
plan, instead of lessening the dignity and importance of Senators, will
magnify their office, and make it the object of desire and laudable
ambition to the best characters and greatest talents of our country; for,
from the Senate I propose that the President of the United States shall
always be taken; and in a manner that will exclude all _cabal_ and _undue
influence_ in obtaining that high office--a mode in which the man of
modest merit shall have an equal chance of success with the most daring
and artful intriguer.
The third amendment provides for the appointment of a President. He is to
be taken by lot from the Senate, and is to hold his office for one year.
This mode promises many advantages, and only two objections against it
present themselves to my mind; one, that it is a departure from the
_elective principle_; the other, that it will not always ensure the
best talents. I should not have proposed this mode, if any other could
have been devised, which would not convulse the whole body politic,
set wide open the door to _intrigue_ and _cabal_, and bring upon the
nation incalculable evils; evils already felt, and growing more and more
serious. Upon mature examination, those objections appear less formidable
than at first view.
When Senators shall be chosen with an eye to this provision, every State
will be anxious to make such a selection of persons as will not disgrace
it in the eventual elevation of one of them to the Presidential chair.
Every State Legislature would, in the choice of the Senator, consider
itself as nominating a candidate for the Presidency. The effect of this
arrangement would be, in reality, that, instead of the States appointing
Electors to choose a President, the Legislatures themselves would become
the Electors; with this advantage, that the nomination would be made
when not under the influence of a Presidential electioneering fever. In
the regular course of appointing Senators, only one nomination would be
made at one time in each State; and in most cases, three years would
elapse before he could be designated for the Presidency. The great
caution in the selection of Senators, with a reference to that high
office, would produce another excellent effect: it would ensure the
continuance, in that body, of men of the most respectable talents and
character--an object of the highest importance to the general welfare.
In the mode directed by the constitution for choosing a President by the
House of Representatives, there is almost as great a departure as in
what I propose, from the pure elective principle; which requires perfect
freedom of choice among all who are eligible; and that the ballot of each
qualified voter shall have equal weight in making such choice. Whereas,
by the constitution, the House are confined to three candidates, and must
vote by States; so that a State having twenty-two members, has but one;
and, consequently, no more weight than a State having only a single
member. And those States whose members shall be equally divided, will
have no vote. These circumstances considered, the present constitutional
mode of choosing a President by the House of Representatives, when
tested by the pure elective principle, may be deemed, as to the mode
of choosing, and the object of the choice, as exceptionable as the
appointment by lot; while it remains liable to all the evils of a
contested election, from which the appointment by lot is wholly free.
In answer to the second objection, it may be fairly presumed that the
Senate will always be composed of men possessed at least of decent
talents. And such men, with honest views, long experience, and the aid
of the Heads of Departments and other officers, would be able to do the
public business correctly. It is not necessary, it is not desirable,
that the President should command the armies in person; and all our
foreign relations may be managed through the agency of able Ministers,
whose appointments are to be approved both by the Senate and House of
Representatives. The several Executives, ever since the adoption of the
constitution, have been in the habit of calling to their aid a Cabinet
Council, composed of the Heads of Departments; who ought to consist, as
they probably will, of men of talents, integrity, and experience; and
who, upon the plan proposed, being likely to continue long in office,
will thereby give stability and system to the measures of Government.
If the appointment by lot will not always insure a President of the
first rate talents, neither will the present mode of electing; for when
party spirit runs high, and parties are nearly balanced, candidates will
be set up, not for their talents, but because they are popular and can
command votes. And there may be a possibility of having a President for
four years, distinguished neither for talents nor integrity. A President
appointed by lot will possess the advantage, and in practice it will
be found a very great advantage, of coming into office free from party
influence; which, under the present mode of electing, is seldom if ever
to be expected; and it is to be feared that it will be too powerful to
suffer even an honest man to do right.
Appointing a President by lot from the Senate, will give every State
an equal and fair chance of participating in the dignity of that high
office; will prevent the possibility of bargaining among the large States
to the total exclusion of the middling and small States; and will thus
remove one ground of State jealousy, which must inevitably grow out of
our present mode. As it regards the sovereignty of the respective States,
the appointment by lot is in exact conformity to the principles of the
constitution; for in the event of an election of a President by the House
of Representatives, each State has an equal vote, conformably with its
equal rights as sovereign and independent; so that, in respect to peace
and union, this mode of appointing a President would produce effects of
great and lasting importance.
As the President is to be taken from the Senate, and, if worthy of the
Senatorial office, must have experience, and be well informed of the
affairs of the nation--and can also avail himself of the information
and talents of every member of the Government--there can be no solid
objection to reducing his term of service to one year. The President will
always enter on his office at the close of the session of Congress; and
during the recess have time to make himself more fully acquainted with
the state of the nation, so as to present a proper view of it to the next
Congress, as well as to conduct successfully the public business at the
end of his term. No serious embarrassment or inconvenience, in conducting
the public business, has been felt from the change of a President or the
Head of a Department. There are and always must be subordinate officers
around the Government, well acquainted with the routine of business;
which will and must proceed in its usual course. If any example were
necessary to show that no injury would arise to the nation from an annual
appointment of a President, I might instance the ancient Republic of
Rome--where, in the days of her greatest virtue, prosperity, and glory,
her chief magistrates, or consuls, were chosen every year. But, being
taken from the Senate, a body conversant with the management of their
public affairs, as is our Senate, no evil accrued to the public.
The office of President is the only one in our Government clothed with
such powers as might endanger liberty; and I am not without apprehension
that, at some future period, they may be exerted to overthrow the
liberties of our country. The change from four to ten years is small; the
next step would be from ten years to life, and then to the nomination
of a successor; from which the transition to an hereditary monarchy
would almost follow of course. The exigencies of the country, the public
safety, and the means of defence against foreign invasion, may place in
the hands of an ambitious, daring President, an army, of which he would
be the legitimate commander, and with which he might enforce his claim.
This may not happen in my day; it probably will not; but I have children
whom I love, and whom I expect to leave behind me, to share in the
destinies of our common country. I cannot therefore feel indifferent to
what may befall them and generations yet unborn.
I do not desire in the smallest degree to lessen the President’s power
to do good; I only wish to place such salutary checks upon his power,
as to prevent his doing harm. His power of nominating and appointing
to office, and removing from office, will still be continued; with
only the additional check of requiring the consent of the House of
Representatives, in one case, and of the Senate and House in the other.
All his other powers will remain the same as at present, and there
will be but little danger of an abuse of those powers, if the term of
Presidential office be reduced to one year, and the appointment be by
lot: which will render it impossible to bring the high prerogatives of
this office to aid in procuring it. An artful intriguer cannot then point
to the various lucrative offices in the gift of the President, for the
purpose of stimulating exertion in favor of his election: than which a
more powerful engine could not have been devised.
Of the impropriety and impolicy of the present mode of electing a
President, can there be stronger proof, can there be a more convincing
evidence, than is now exhibiting in the United States? In whatever
direction we turn our eyes, we behold the people arranging themselves
under the banners of different candidates, for the purpose of commencing
the electioneering campaign for the next President and Vice President.
All the passions and feelings of the human heart are brought into the
most active operation. The electioneering spirit finds its way to every
fireside; pervades our domestic circles; and threatens to destroy the
enjoyment of social harmony. The seeds of discord will be sown in
families, among friends, and throughout the whole community. In saying
this, I do not mean any thing to the disadvantage of either of the
candidates. They may have no agency in the business; they may be the
involuntary objects of such competition, without the power of directing
or controlling the storm. The fault is in the mode of election; in
setting the people to choose a King. In fact, a popular election, and
the exercise of such powers and prerogatives as are by the constitution
vested in the President, are incompatible. The evil is increasing, and
will increase, until it shall terminate in civil war and despotism.
The people, suffering under the scourge of party feuds and factions,
and finding no refuge under the State, any more than in the General
Government, from party persecution and oppression, may become impatient,
and submit to the first tyrant who can protect them against the thousand
tyrants.
I have dwelt so long on this amendment, because of the novelty, in
this country, of appointing a Chief Magistrate by lot. The facility
of appointing by lot was obvious; but it seemed necessary to exhibit,
and to demonstrate the many and highly important advantages which will
arise from this mode of appointing a President of the United States. The
principal of these I will now present in one short view:
1st. It will make the Senate more respectable.
2d. It is prompt and certain.
3d. It will avoid the evils of a disputed election, now unprovided for in
the constitution.
4th. It will exclude intrigue and cabal.
5th. It gives talent and modest merit an equal chance.
6th. It is economical.
7th. It gives to the people a President of the United States, and not the
chief of a party.
8th. It removes temptation to use power otherwise than for public good.
9th. It will annihilate a general party pervading the whole United States.
10th. It will remove a direct, powerful, and dangerous influence of the
General Government on the individual States.
11th. It will prevent the influence of a Presidential election on our
domestic concerns and foreign relations. And,
12th. It will secure the United States against the usurpation of power,
and every attempt, through fear, interest, or corruption, to sacrifice
their interest, honor, or independence; for one year is too short a time
in which to contrive and execute any extensive and dangerous plan of
unprincipled ambition; and the same person cannot be President during two
successive terms.
Reducing the Presidential term of service to one year, will remove the
necessity of attaching to the office the splendor of a palace. The
simplicity of ancient Republics would better suit the nature of our
Government. The instances of persons called from the plough to command
armies, or to preside over the public councils, show that in a Republic
pomp and splendor are not necessary to real dignity. Cincinnatus, who
was content with the scanty support derived from tilling, with his own
hands, his four-acre farm, has been as celebrated in history as the most
splendid monarchs. By these remarks I would not be understood to object
against giving adequate salaries to all public functionaries. In the
case of subordinate officers, it may be left to Legislative discretion.
But the President having such great power and extensive influence, his
compensation ought to have a constitutional limit, and not exceed fifteen
thousand dollars.
FRIDAY, April 15.
_Death of the Representative, Jacob Crowninshield._
A message from the House of Representatives notified the Senate of the
death of JACOB CROWNINSHIELD, Esq., late a member of that House, and that
his funeral will take place to-morrow morning, at 10 o’clock.
On motion, by Mr. GILMAN,
_Resolved_, That the Senate will attend the funeral of Mr. CROWNINSHIELD
to-morrow morning at 10 o’clock.
SATURDAY, April 16.
The Senate adjourned to twelve o’clock, and attended the funeral of
the honorable JACOB CROWNINSHIELD. After which they returned to their
Chamber, and the VICE PRESIDENT having retired for the remainder of the
session, the Senate proceeded by ballot to the choice of a PRESIDENT _pro
tempore_, as the constitution provides; and the honorable SAMUEL SMITH
was elected.
_Ordered_, That the Secretary wait on the President of the United
States, and acquaint him that the Senate have, in the absence of the
Vice President, elected the honorable SAMUEL SMITH their President _pro
tempore_; and that the Secretary make a like communication to the House
of Representatives.
WEDNESDAY, April 20.
_Bank of the United States._
Mr. GREGG presented the memorial of the stockholders of the Bank of the
United States, signed Samuel Breck, chairman, representing that, by an
act of Congress, passed on the 25th of February, 1791, the subscribers to
the capital stock of the said Bank, their successors and assigns, were
incorporated for a term of years, which act will expire on the 4th day of
March, 1811; and praying a renewal of their charter, for reasons stated
at large in their memorial; which was read, and referred to the Secretary
of the Treasury, to consider and report thereon at the next session of
Congress.
MONDAY, 5 o’clock, P. M., April 25.
_Adjournment._
_Resolved_, That Messrs. MITCHILL and CRAWFORD be a committee on the part
of the Senate, with such as the House of Representatives may join, to
wait on the President of the United States, and notify him that, unless
he may have any further communications to make to the two Houses of
Congress, they are ready to adjourn.
_Ordered_, That the Secretary acquaint the House of Representatives
therewith, and request the appointment of a committee on their part.
A message from the House of Representatives informed the Senate that the
House concur in the resolution of the Senate for the appointment of a
joint committee to wait on the President of the United States and notify
him of the intended recess, and have appointed a committee on their part.
Mr. Mitchill, from the committee, reported that they had waited on the
President of the United States, who informed them that he had no further
communications to make to the two Houses of Congress; whereupon, the
President adjourned the Senate until the first Monday in November next.
TENTH CONGRESS.--FIRST SESSION.
PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES.
LIST OF REPRESENTATIVES.
_New Hampshire._--Peter Carlton, Daniel M. Durell, Francis Gardner,
Jedediah K. Smith, Clement Storer.
_Massachusetts._--Joseph Barker, John Chandler, Ezekiel Bacon, Orchard
Cook, Richard Cutts, Jacob Crowninshield, Josiah Deane, William Ely,
Isaiah L. Green, Edward St. Loe Livermore, Daniel Ilsley, Josiah Quincy,
Ebenezer Seaver, William Stedman, Samuel Taggart, Joseph B. Varnum, Jabez
Upham.
_Vermont._--Martin Chittenden, James Elliot, James Fisk, James Witherall.
_Rhode Island._--Nehemiah Knight, Isaac Wilbour.
_Connecticut._--Epaphroditus Champion, Samuel W. Dana, John Davenport,
Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B. Sturges, Benjamin
Tallmadge.
_New York._--John Blake, jr., George Clinton, Barent Gardenier, John
Harris, Reuben Humphreys, William Kirkpatrick, Gurdon S. Mumford, Josiah
Masters, Samuel Riker, John Russell, Peter Swart, David Thomas, John
Thompson, James J. Van Allen, Philip Van Cortlandt, Killian K. Van
Rensselaer, Daniel C. Verplanck.
_New Jersey._--Ezra Darby, William Helms, Adam Boyd, John Lambert, Thomas
Newbold, James Sloan, Henry Southard.
_Pennsylvania._--David Bard, Robert Brown, Joseph Clay, William Findlay,
John Heister, William Hoge, Robert Jenkins, James Kelly, William Milnor,
Daniel Montgomery, jr., John Porter, John Pugh, John Rea, Jacob Richards,
Matthias Richards, John Smilie, Samuel Smith, Robert Whitehill.
_Delaware._--Nicholas Van Dyke.
_Maryland._--John Campbell, Charles Goldsborough, Philip Barton Key,
Edward Lloyd, Wm. McCreery, John Montgomery, Nicholas R. Moore, Roger
Nelson, Archibald Van Herne.
_Virginia._--Burwell Bassett, Wm. A. Burwell, Matthew Clay, John Clopton,
John Dawson, John W. Eppes, James M. Garnett, Peterson Goodwyn, Edwin
Gray, David Holmes, John G. Jackson, Walter Jones, Joseph Lewis, jr.,
John Love, John Morrow, Thomas Newton, jr., John Randolph, Abram Trigg,
John Smith, Alexander Wilson.
_North Carolina._--Evan Alexander, Willis Alston, jr., Wm. Blackledge,
Thomas Blount, John Culpepper, Nathaniel Macon, Thomas Kenan, Lemuel
Sawyer, James Holland, Richard Stanford, Meshack Franklin, Marmaduke
Williams.
_South Carolina._--Lemuel J. Alston, jr., William Butler, Joseph Calhoun,
John Taylor, Robert Marion, David R. Williams, Richard Wynn.
_Georgia._--William W. Bibb, Howell Cobb, Dennis Smelt, George M. Troup.
_Ohio._--Jeremiah Morrow.
_Kentucky._--Joseph Desha, Matthew Lyon, Benjamin Howard, Richard M.
Johnson.
_Tennessee._--John Rhea, G. W. Campbell, Jesse Wharton.
_Orleans Territory._--Delegate; Daniel Clark.
MONDAY, October 26, 1807.
This being the day appointed by Proclamation of the President of the
United States, of the thirtieth day of July last, for the meeting of the
Congress, the following members of the House of Representatives appeared,
produced their credentials, and took their seats, to wit:
_From New Hampshire_--Peter Carlton, Daniel M. Durell, Francis
Gardner, Jedediah K. Smith, and Clement Storer.
_From Massachusetts_--Joseph Barker, John Chandler, Orchard
Cook, Richard Cutts, Josiah Deane, William Ely, Isaiah L.
Green, Daniel Ilsley, Josiah Quincy, Ebenezer Seaver, William
Stedman, Samuel Taggart, Joseph B. Varnum, and Jabez Upham.
_From Vermont_--Martin Chittenden, James Elliot, James Fisk,
and James Witherall.
_From Rhode Island_--Nehemiah Knight, and Isaac Wilbour.
_From Connecticut_--Epaphroditus Champion, Samuel W. Dana, John
Davenport, Jonathan O. Mosely, Timothy Pitkin, jr., Lewis B.
Sturges, and Benjamin Tallmadge.
_From New York_--John Blake, junior, Barent Gardenier, John
Harris, Reuben Humphreys, William Kirkpatrick, Josiah Masters,
Samuel Riker, John Russell, Peter Swart, David Thomas, John
Thompson, James J. Van Allen, Philip Van Cortlandt, Killian K.
Van Rensselaer, and Daniel C. Verplanck.
_From New Jersey_--Ezra Darby, William Helms, John Lambert,
Thomas Newbold, James Sloan, and Henry Southard.
_From Pennsylvania_--David Bard, Robert Brown, William Findlay,
John Heister, Robert Jenkins, James Kelly, William Milnor,
Daniel Montgomery, jr., John Porter, John Pugh, John Rea, Jacob
Richards, Matthias Richards, John Smilie, Samuel Smith, and
Robert Whitehill.
_From Maryland_--John Campbell, Charles Goldsborough, Philip
B. Key, Edward Lloyd, William McCreery, John Montgomery,
Nicholas R. Moore, Roger Nelson, and Archibald Van Horne.
_From Virginia_--Burwell Bassett, William A. Burwell, Matthew
Clay, John Clopton, John Dawson, John W. Eppes, James M.
Garnett, Peterson Goodwyn, Edwin Gray, David Holmes, Walter
Jones, Joseph Lewis, jr., John Love, John Morrow, Thomas
Newton, jr., John Randolph, and John Smith.
_From North Carolina_--Evan Alexander, Willis Alston, jr.,
Thomas Blount, John Culpepper, Thomas Kenan, Lemuel Sawyer,
Richard Stanford, and Meshack Franklin.
_From South Carolina_--Lemuel J. Alston, jr., Wm. Butler,
Joseph Calhoun, Thomas Moore, John Taylor, and David R.
Williams.
_From Georgia_--William W. Bibb, Howell Cobb, Dennis Smelt, and
George M. Troup.
_From Ohio_--Jeremiah Morrow.
_From Kentucky_--Joseph Desha, Benjamin Howard, and Richard M.
Johnson.
_From Tennessee_--John Rhea, and Jesse Wharton.
The Assistant Clerk of the House announced 117 members and one delegate
to be present, being a majority of the whole number. He then inquired
if it were the pleasure of the House to proceed to the appointment of a
Speaker, which being determined in the affirmative, the members proceeded
to ballot for that officer, Messrs. CUTTS, HELMS, and JOHN CAMPBELL,
being named tellers.
The tellers, after examining the votes, reported that 117 were received,
and JOSEPH B. VARNUM, a Representative from the State of Massachusetts,
having fifty-nine of them, was declared to be duly elected.
The votes were given as follows, viz:
Joseph B. Varnum, 59; Charles Goldsborough, 17; Burwell Bassett, 17;
Josiah Masters, 8; Thomas Blount, 7; John Dawson, 4; John Smilie, 2;
Benjamin Tallmadge, 1; Timothy Pitkin, 1; and R. Nelson, 1.
The Speaker being conducted to the Chair, by Mr. VAN CORTLANDT and Mr.
ALSTON, addressed the House as follows:
_Gentlemen of the House of Representatives_:
You will please to accept my most grateful acknowledgments for
the honor which by your suffrages on this occasion you have
conferred upon me. I am sensible of my own inability to perform
the important duties you have been pleased to assign me, in the
most desirable manner; but relying on your candor and readiness
to afford me your aid, I accept the trust. And be assured,
gentlemen, that it will be my assiduous endeavor to discharge
the duties of the office faithfully and impartially; and in
a manner which, in my opinion, shall be best calculated to
meet your wishes and afford me the consolation of an approving
conscience.
The oath to support the Constitution of the United States, as prescribed
by the act, entitled “An act to regulate the time and manner of
administering certain oaths,” was administered by Mr. VAN CORTLANDT, one
of the Representatives for the State of New York, to the SPEAKER; and
then the same oath, or affirmation, was administered by Mr. SPEAKER to
all the members present.
GEORGE POINDEXTER, Esq., having also appeared as the delegate from
the Mississippi Territory of the United States, the said oath was
administered to him by the SPEAKER. The same oath, together with the oath
of office prescribed by the said recited act, were also administered by
Mr. SPEAKER to the Clerk.
A message from the Senate informed the House that a quorum of the Senate
is assembled, and ready to proceed to business. Also, that the Senate
have appointed a committee on their part, jointly with such committee
as may be appointed on the part of this House, to wait on the President
of the United States, and inform him that a quorum of the two Houses is
assembled, and ready to receive any communications he may be pleased to
make to them.
_Ordered_, That a message be sent to the Senate, to inform them that a
quorum of this House is assembled, and have elected JOSEPH B. VARNUM,
Esq., one of the Representatives for the State of Massachusetts, their
Speaker; and that the Clerk of this House do go with the said message.
Mr. BASSETT, Mr. GOLDSBOROUGH, and Mr. MASTERS, were appointed a
committee on the part of this House, jointly with the committee appointed
on the part of the Senate, to wait on the President of the United States,
and inform him that a quorum of the two Houses is assembled, and ready to
receive any communication that he may be pleased to make to them.
_Election of Clerk, &c._
The House next proceeded to the election of a Clerk. The same tellers
which had been appointed on the former election having been named by the
Speaker on this, the members proceeded to ballot, and Patrick Magruder
having received 72 votes was declared duly elected.
TUESDAY, October 27.
Several other members, to wit: from Virginia, ABRAM TRIGG and ALEXANDER
WILSON; from South Carolina, ROBERT MARION; and from Tennessee, GEORGE W.
CAMPBELL, appeared, produced their credentials, were qualified, and took
their seats in the House.
WEDNESDAY, October 28.
Another member, to wit, WILLIAM HOGE, from Pennsylvania, appeared,
produced his credentials, was qualified, and took his seat in the House.
THURSDAY, October 29.
Another member, to wit, WILLIAM BLACKLEDGE, from North Carolina,
appeared, produced his credentials, was qualified, and took his seat in
the House.
FRIDAY, October 30.
The House proceeded, by ballot, to the appointment of a Chaplain to
Congress, on the part of this House; and, upon examining the ballots, a
majority of the votes of the whole House was found in favor of the Rev.
OBADIAH B. BROWN.
MONDAY, November 2.
Several other members, to wit: from Massachusetts, EZEKIEL BACON; from
New York, GURDON S. MUMFORD; from North Carolina, JAMES HOLLAND; from
Kentucky, MATTHEW LYON; and from South Carolina, RICHARD WYNN, appeared,
produced their credentials, were qualified, and took their seats in the
House.
THURSDAY, November 5.
_Revolutionary Pensions._
Mr. DANA said it was well known, that during the last Congress, an act
was passed for the relief of persons claiming pensions. The object of the
act was, to grant relief to some whose cases were not embraced by the
former act, and to grant an increased allowance to others who had not, as
yet, received sufficient. This act provides for taking depositions before
the district judge, in cases where the claimants have never been placed
on the pension list, as well as for examination of the claims of those
who apply to have their pensions increased. Whether any compensation
should be allowed for issuing commissions, or for making the examinations
required, is not declared by the act. A difference of practice, he
understood, had taken place. In some cases, commissions were issued
gratuitously by the district judge; in other cases, these poor solicitors
were obliged, from their small pittance, to pay for these services. If
any compensation were to be allowed for this service, he thought it
should be paid from the public treasury. Whatever might be the mode
adopted, he wished it to be fixed by law. For this purpose he offered the
following resolution:
“_Resolved_, That a committee be appointed to inquire what
compensation shall be allowed for issuing commissions giving
authority for taking testimony, or examining evidence relative
to claims or applications under the act to provide for persons
who have been disabled by known wounds received in the
Revolutionary war, and that the committee have leave to report
by bill or otherwise.”
_Frigate Chesapeake._
Mr. QUINCY said the House would recollect that when in Committee of the
Whole on the state of the Union, some days ago, he submitted an amendment
to a resolution of the gentleman from Virginia, (Mr. DAWSON,) which went
to an inquiry into the circumstances of the attack on the Chesapeake,
and the causes assigned for it, as well as the manner in which it was
repelled. At that time two objections of some apparent validity were
urged against this motion; the one was that it might have an improper
effect upon a pending trial, the other was as to its form. To obviate
these objections, he had modified the resolution, which he should now
offer to the House.
Mr. Q. read his motion, as follows:
“_Resolved_, That the committee to whom was referred so
much of the Message of the President of the United States as
relates to aggressions committed within our ports and waters,
by foreign armed vessels, to violations of our jurisdiction,
and to measures necessary for the protection of our ports and
harbors, be instructed to inquire into the circumstances of the
attack made on the frigate Chesapeake in June last, and the
pretexts or causes assigned for making it, and to report the
same in detail to the House.”
Mr. Q. would lay before the House his reasons for offering this
resolution. He could not acquiesce in the course which had been given to
that part of the President’s Message which relates to the attack on the
Chesapeake. He could not reconcile it with the sense of justice or with
the honor of this House. He asked gentlemen to consider our situation
in relation to this subject. A violent attack is made upon one of our
public ships of war, in a manner undeniably hostile. A great degree of
excitement has taken place in the public mind throughout the continent.
Our newspapers have teemed with every species of information, a part
of which has been correct, and a part incorrect; which has sometimes
fallen short of the truth, and sometimes exceeded it; has been sometimes
official, and sometimes unofficial. In this situation of things, the
President of the United States deemed it wise and prudent to call an
extraordinary session of this Legislature. We are now assembled. He has
made a communication to us, and this attack is a striking feature in
it. This is our situation. What have we done? The House has gone into a
Committee of the Whole, taken up the Message of the President, cut it up
into parts, according to Parliamentary custom; and we have taken as many
of those parts as we pleased and referred them to particular committees;
some of which are a kind of patchwork committees. In all of these
references, notwithstanding it was the very object which occasioned the
early meeting of the present session, no mention is made of the attack
on the Chesapeake. The committee, which he proposed to instruct on this
subject, had what related to aggressions committed within our ports and
waters submitted to them generally, but they have no compass by which to
steer; no prominent object is placed before them. He could not reconcile
this manner of acting with his duty. He deemed it necessary to obtain a
full development of all the circumstances relative to this affair, in
order that Congress, and the people at large, may form a correct judgment
of our situation. The course adopted is not the course to gain the
information so desirable. It is a course of Parliamentary ignorance, not
a course of development. It is a course of concealment. He spoke as to
the general effect of measures, and not as to gentlemen’s motives.
He inquired of gentlemen what method they would pursue, if they wanted
to understand any particular subject? Would they not refer it to a
distinct committee, and not mix it up with extraneous matter? And if
you give a committee two or three distinct objects to act upon, but
wish them to attend more especially to one, it is proper to give them
specific instructions to that point. This is the way to come at the
proper understanding of a subject. But, on the contrary, if it were the
wish of any member of this House to promote concealment, to prevent a
knowledge of facts, the way is obvious. It would be to place three or
four subjects together, and to suffer the committee to which they are
referred to act as they please upon them. We know that committees thus
left to themselves, will never do too much.
It was because the people of the United States wish to know something
on this subject, that he made this motion. It may be said that this
committee have already the power, and that they may make the necessary
inquiries without this instruction. But it is the duty of this House
to be certain that they will do so. Indeed, if the committee were now
proceeding in this inquiry, this would be no good reason why this motion
ought not to be adopted. If, without being instructed by this House, the
committee should report the facts now called for, the honor of the act
would rest upon that committee; whereas it ought to rest upon this House.
Perhaps it may be said, as on a former occasion, that every man, woman,
and child, in the United States is acquainted with these facts; but what
is known from popular report, or newspaper information, is not the kind
of knowledge we want. We want facts from the proper authority.
An objection had been made to this course, that it would be casting a
censure upon the committee. Not so; it would be no more than drawing
the attention of an organ of the House to a particular subject. It may
be objected to, because a negotiation is pending; but what is done by
Congress, at this time, can have no effect on a negotiation carrying on
across the Atlantic. The House is at present calm and tranquil, and this
is therefore a proper time to undertake an investigation of the facts
required. Let the negotiation terminate as it may, we shall never have
a fair inquiry into these facts, unless we enter upon it at present.
Suppose, said he, the negotiation has a favorable issue, and no inquiry
has been made, is there a member present who will say the inquiry would
then be entered upon? No, it would be said to be an old wound, which
ought not to be probed, but forgotten. But suppose, on the other hand,
that the negotiation should be abruptly broken off, and this House should
be called upon to put the nation in hostile array, would that be a proper
time for entering upon the proposed inquiry? Would the House be in a
fit state for deliberating upon the facts required? Indeed, the subject
appeared to him so clear, and the duty to bring forward this motion so
impressive, that he could not refrain from making it.
Mr. BURWELL said he had hoped he should have been able to have satisfied
the gentleman from Massachusetts, as to the attention of the committee
to whom this duty was assigned; but after an expression which had dropped
from him, he despaired of doing it. He would, however, inform the House
that the committee to whom the subject was referred were engaged in a
course of investigation on the very part of it now agitated, and had
come to a determination to obtain, from the proper authority, a correct
detail of the circumstances attending this particular attack; not content
with this, they were about to call on the Government for a detail of all
aggressions that had been committed within our ports and waters.
Mr. BLOUNT said, that, at the moment the gentleman from Massachusetts
had moved this resolution, he was in the committee-room, in the act of
addressing a note to the Secretary of State on this subject, according to
the direction of the committee, calling for a full and correct statement
of all the facts relative to the aggression committed on the frigate
Chesapeake. For the satisfaction of the gentleman, he would read the note
which he had written. [Mr. B. then opened and read the note.]
THURSDAY, November 12.
Two other members, to wit: from Massachusetts, JACOB CROWNINSHIELD; and
from Pennsylvania, JOSEPH CLAY, appeared, produced their credentials,
were qualified, and took their seats in the House.
The SPEAKER laid before the House sundry documents, transmitted to him by
Duncan McFarland, of the State of North Carolina, relative to his claim
to a seat in this House, as a Representative for said State, in the room
of John Culpepper; which were referred to the Committee of Elections.
_Maryland Contested Election_.[55]
The House then resolved itself into a Committee of the Whole on the
report of the Committee of Elections, to whom was referred the memorial
of Joshua Barney, of the State of Maryland. The report of the Committee
of Elections is as follows:
The Committee of Elections, to whom was committed the petition
of Joshua Barney, of the city of Baltimore, praying to be
admitted to a seat in the House, he having, in his opinion,
the highest number of votes given to a candidate legally
qualified to represent the city of Baltimore, having carefully
examined the facts stated on both sides, and compared the laws
of Maryland under which the said election was held, with the
Constitution of the United States, report--
That, by an act of the Assembly of Maryland, passed in
November, 1790, it is required that the member shall be an
inhabitant of his district at the time of his election, and
shall have resided therein twelve calendar months immediately
before.
By another act of the Assembly of Maryland, passed in November,
1802, it is enacted that Baltimore town and county shall be the
fifth district, which district shall be entitled to send two
Representatives to Congress, one of which shall be a resident
of Baltimore county, and the other a resident of Baltimore city.
That Joshua Barney is a citizen of Maryland, and has been a
resident of Baltimore city for many years.
That William McCreery has been for many years a citizen of
Maryland, and a resident of the city of Baltimore; but that, in
the year 1803, he removed himself and his family to his estate
in Baltimore county; that, from that time, though he himself
has occasionally resided in Baltimore, yet he, with his wife
and family, have not made the city their settled residence.
That William McCreery states that his intention was, and still
is, to reside with his family on his country estate in summer,
and in the city of Baltimore in winter; but that, ever since he
has removed his family to his farm, he has been obliged every
winter, in the public service, to reside, and frequently with
his family, in the city of Washington, which prevented him from
removing his family, agreeably to his intention, to the city of
Baltimore; but he resided himself in the city of Baltimore five
or six days before the election; that he and his family were
residing in the same situation, when he was elected to serve in
the ninth Congress, that they were when he was elected into the
present Congress; that, however, not wishing to have been taken
up as a candidate at the last election, he expressed to some of
his friends some apprehensions that exceptions might be made on
account of his constant family residence not being in the city
of Baltimore.
At the election in that district for the Congress now in
session, Nicholas R. Moore had 6,164 votes; he is a resident in
Baltimore county; and William McCreery, against whose right to
a seat in this House objection is made on account of residence,
had 3,559 votes; and Joshua Barney, who claims a seat in this
House, and it is admitted is a resident of Baltimore city, had
2,063 votes; and John Seat, also a resident in Baltimore city,
had 353 votes. The above statement of facts being admitted by
the parties, further evidence was not required. No question was
taken on the legal residence of William McCreery in the city of
Baltimore.
The committee proceeded to examine the constitution, with
relation to the case submitted to them, and find that
qualifications of members are therein determined, without
reserving any authority to the State Legislatures to change,
add to, or diminish those qualifications; and that, by
that instrument, Congress is constituted the sole judge of
the qualifications prescribed by it, and are obliged to
decide agreeably to the constitutional rules; but the State
Legislatures being, by the constitution, authorized to
prescribe the time, place and manner of holding the elections,
in controversies arising under this authority, Congress are
obliged to decide agreeably to the laws of the respective
States.
On the most mature consideration of the case submitted to
them, the committee are of opinion that William McCreery is
duly qualified to represent the fifth district of the State
of Maryland, and that the law of that State, restricting the
residence of the members of Congress to any particular part of
the district for which they may be chosen, is contrary to the
Constitution of the United States: therefore,
“_Resolved_, That William McCreery is entitled to his seat in
this House.”
TUESDAY, November 17.
Another member, to wit, MARMADUKE WILLIAMS, from North Carolina,
appeared, produced his credentials, was qualified, and took his seat in
the House.
_Frigate Chesapeake._
Mr. BLOUNT, from the committee to whom was referred so much of the
Message of the President as relates to aggressions, &c., made a report.
The report commences with an expression of sensibility at the outrage
committed on the Chesapeake; states the receipt of information relative
thereto from the State and Navy Departments; presents a general view
of the circumstances; observes that it might be said to have been
incontestably proved that William Ware, John Strachan, and Daniel Martin
are citizens of the United States. But the committee add, that they
conceive it unnecessary for them or the House to go into any inquiry
on that part of the subject, as in their opinion whether the men taken
from the Chesapeake were or were not citizens of the United States, and
whether the Chesapeake was or was not within the acknowledged limits of
the United States at the time they were taken, the character of the act
of taking them remains the same.
“From the foregoing facts, it appears to your committee that
the outrage committed on the frigate Chesapeake has been
stamped with circumstances of indignity and insult of which
there is scarcely to be found a parallel in the history of
civilized nations, and requires only the sanction of the
Government under color of whose authority it was perpetrated
to make it just cause of, if not an irresistible call for,
instant and severe retaliation. Whether it will receive that
sanction, or be disavowed, and declared an unauthorized act
of a subordinate officer, remains to be determined by the
answer which shall be given to the demand of explanation. That
answer (now daily expected) will either sink the detestable
act into piracy, or expand it to the magnitude of premeditated
hostility against the sovereignty and independence of this
nation; and until its true character shall be fixed and known,
your committee deem it expedient to decline expressing any
opinion as to the measures proper to be adopted in relation
to it. But, as other acts of aggression have been committed
within our ports and waters by British ships of war, as well
anterior as posterior to this, some of them manifesting the
same disregard of our national rights, and seeming to flow
from the same contempt for the authority of our laws; and
especially as the British squadron, of which the Leopard was
one, after being notified of the President’s proclamation,
ordering them to depart from the waters of the United States
which they knew had been published in conformity to an act
of Congress, anchored within the capes of Chesapeake Bay, and
in that situation remained, capturing American vessels, even
within our acknowledged territorial limits, and sending them to
Halifax for adjudication--impressing seamen on board American
vessels--firing on vessels and boats of all descriptions,
having occasion to pass near them in pursuit of their lawful
trade, and occasionally denouncing threats, calculated to alarm
and irritate the good people of the United States, particularly
the inhabitants of Norfolk and Hampton--all which facts are
substantiated by the accompanying documents, Nos. 1 to 6--the
committee are of opinion that it is expedient to provide more
effectually for the protection of our ports and harbors; but
not being prepared to report specifically on that subject, they
ask further indulgence of the House, and beg leave to submit
for their consideration the following resolution:
“_Resolved_, That the attack of the British ship of war
Leopard on the United States frigate Chesapeake was a flagrant
violation of the jurisdiction of the United States, and
that the continuance of the British squadron (of which the
Leopard was one) in their waters, after being notified of the
proclamation of the President of the United States, ordering
them to depart the same, was a further violation thereof.”
The report was referred to a Committee of the Whole on Monday.
On a motion of Mr. BASSETT, that the proceedings of this day, with closed
doors, ought to be kept secret, the question being taken thereupon, it
passed in the negative--yeas 22, nays 104.
WEDNESDAY, November 18
_British Aggressions._
Mr. QUINCY said the House might have observed, that in the Message of
the President of the United States to Congress, delivered on the 27th
of October, there was an express reference to a certain Proclamation
interdicting our ports and harbors to British armed vessels. It was
in Great Britain, he understood, a universal Parliamentary rule, that
proclamations of this kind should be laid before Parliament; and in this
country it had heretofore been the usual practice. In the case of the
Proclamation of Neutrality, issued by President Washington, in 1793,
in his first communication to Congress, he laid it before them, and it
was entered on the Journals. Circumstances of however great notoriety
were not official information on which they could act; but, were it so,
he had not been able to find it in any papers he could procure. He had
expected it would have been connected with the report of the committee
on aggressions; but, as it was not yet before the House, he moved the
following resolution:
_Resolved_, That the President of the United States be
requested to cause to be laid before this House a copy of his
Proclamation interdicting our harbors and waters to British
armed vessels, &c., referred to in his Message of the 27th of
October last.
Mr. CROWNINSHIELD could not see any necessity for calling for this
paper. He well recollected that the President had issued proclamations on
other subjects which had never been laid before the House. That issued
in the case of an aggression committed by Captain Whitby, commanding an
armed ship of Great Britain, had not been transmitted to the House; so,
in the case of the famous conspiracy of Mr. Burr, a proclamation was
issued at the time, and not laid before the House, nor had the House
thought necessary to call for these papers. They were before the public,
and every member of the House must have perused them. Mr. C. wished his
colleague to show some necessity for the present call; for he could see
none. The practice which had taken place in other countries was not to
govern them; he might as well have drawn a precedent from the practice of
France, Germany, or any other country, as from Great Britain. Besides,
he doubted whether it was the practice there. It was well known that,
under that Government, the King and Council legislated in a variety of
instances. The citizens of this country had suffered severely by these
measures. They legislated for neutrals in this way, and property to an
immense amount had been taken from our merchants under these orders, and
Mr. C. did not know that their acts in such cases had been laid before
the Parliament, or even called for. He should, however, have no objection
to the call in this instance, but that he saw no necessity for it. The
gentleman might perhaps not have seen the Proclamation; but it was well
known that it had been published in almost all the papers in the Union.
It first appeared in a paper of this city, and he presumed was copied
from that paper into the others. He had no doubt but the Proclamation
would be communicated, or any other paper that might be called for.
Mr. ALSTON said it was certainly very immaterial whether the resolution
was adopted or not; but it was certainly causing considerable trouble for
nothing, to submit such a resolution to the House. The gentleman might
have laid his hands on it in any paper published in the Union. Did that
gentleman receive an official copy of the proclamation for convening
Congress at this time? If he did, Mr. A. said he had an advantage over
him; for he saw the Proclamation in the newspapers, and came on in
consequence; and if there had been any proclamation issued, Mr. Q. could
have found it in the newspapers. He had an objection to this resolution,
because it was going out of the way; he had never before known an
instance of a call upon the President for any proclamation which he had
not thought proper to lay before them.
Mr. QUINCY said he had cited the example of Great Britain, because that
was the country from whose Parliamentary practice so many precedents
had been drawn. The Proclamation of President Washington, however, was
published in all the papers on the continent, and yet the President had
laid it before Congress on the first day of the succeeding session. He
would refer to the mode in which it was presented, in order to convince
the House it had been heretofore done. The case was thus: The President
of the United States, after some prefatory observations, tells them that
the Proclamation laid before the House had been issued. Immediately
after this, the Journal says, a Message was received from the President
of the United States, enclosing a copy of the Proclamation. The case in
the present instance was of much more importance: he had no conception,
before he saw the report of the committee, but that it would be laid
before them; he had not conceived it possible that it would not be laid
before them in some way. It had been said, that he should give reasons
for calling for it. He thought that in an important case like this the
House should know what was done. He had no objection to the Proclamation;
but it contained certain national principles to which they ought to refer.
He was at a loss to account for the opposition which this motion received
from some quarters of the House; it was impossible it could be made on
any other grounds than a determination to vote down at all events any
question that might be moved, or any inquiry that might be requested
on the part of gentlemen of one description in the House. It seemed to
him to be following up the advice which had lately been given to them
through the channel of a paper printed in this city, which was understood
generally to speak a demi-official language. I have before me, (said he,)
the words in which this House were a short time since addressed in that
paper, by a person making observations on a motion which Mr. Q. had made,
and which was negatived. Mr. Q. then read the following paragraph from
the National Intelligencer, of November 9:
“Let them weigh well the advice of an enemy before they adopt
it. Let them act as they have done in the present instance. Let
them entertain no apprehensions on the sense of popularity,
even though their adversaries should sound the tocsin of alarm,
and declare themselves in patriotic strains the exclusive
friends of the people. Let them remember that while their
opponents have nothing to do but talk, _they have to act_.”
And was this the language in which this House was to be addressed through
the medium of a newspaper printed at their doors? Was a mere printer to
obtrude upon them his advice as to what course they were to pursue in
relation to the interest of the nation, and to denounce a portion of the
House as unworthy of notice or confidence? He hoped not. But he could
account for the opposition which was now given to this motion from no
other reasons; for if a Proclamation of this kind had been issued, they
ought to have it before them.
Mr. Q. said he possessed no interests different from any other member of
this House; and assuming the right to which he was entitled, he would ask
for information when he had occasion for it.
Mr. CROWNINSHIELD felt much surprised at what had been said by the
gentleman last up. Had Mr. C. said any thing about it, had he made
any allusion to what had appeared in a newspaper in this city? The
publication was made before he had been able to arrive at this city. [Mr.
QUINCY here remarked, he did not refer to him.] Mr. C. did not know to
whom he could refer, except to him or his friend from North Carolina.
He had no intention to make any remark to hurt the gentleman’s feelings
with respect to what had appeared in a newspaper of this city; but what
relation could that have to the subject under consideration? If the paper
alluded to had infringed any privilege appertaining to him as a member
of that House, of which Mr. C. said he knew nothing, he had his remedy.
If of a personal nature, the gentleman had other means of satisfaction.
He was perfectly at a loss as to the object the gentleman could have in
bringing the matter up now. Mr. C. had alluded to the same paper: it was
the only paper of any consequence in the city, and the President was
obliged to take that course to circulate official acts throughout the
Union. It had always been the custom of the President to publish his
Proclamations, but in no instance had he laid them before the House. The
two extraordinary sessions of Congress had been held by Proclamation
published in the newspapers, and the Proclamations for convening them had
not been laid before the House. It having been done by another President
had no bearing on the present case: no law existed authorizing President
Washington to issue such a Proclamation as that referred to; but the
Proclamation now referred to, as well that in the case of Mr. Burr, were
issued under an act of Congress. Mr. C. had no particular objection to
the call; but he could not see the necessity for it. With respect to
precedents in other countries, he wished them to have no influence on the
proceedings in this.
Mr. BURWELL did not rise to oppose the resolution; he was willing
that the Proclamation should be sent to them by the President; but
the gentleman had expressed his surprise that he did not find that
Proclamation contained in the report of the committee. The only reason
was, that they had supposed it was sufficiently official in the
newspapers, and had referred to them when occasion required, as they
would have done to any other authority. He held it a correct proceeding,
that it was the right of any member of that House to call for any
information relative to any subject; he should always favor such an
application; he therefore did not rise to oppose the gentleman’s motion,
but to apologize for the committee’s not having reported it.
Mr. DANA said that the observations of the gentleman from Virginia had
been made with his general candor he had no doubt, but the committee
considered such reference as they had made correct; but as no public
prints were strictly official, and as they were called upon to deliberate
on the Proclamation itself, he thought it necessary they should have it
before them. Were they not called together on this subject particularly,
he might not see the same necessity for having it; but as it was to be
the basis in some measure of their proceedings, they ought to have an
official copy of it. Mr. D. also thought it was more correct, whenever
Congress were called together by Proclamation, that they should be
specially notified. The gentleman from Massachusetts was in an error so
far as related to the form of giving notice of extraordinary sittings; he
had understood the gentleman to say, that Congress were called together
by a Proclamation published in a newspaper, which was official notice.
This was not the correct course. It was true they were now all gathered
together; but their journals would not show how. When an extraordinary
session had been called formerly, a letter had been addressed to each
member from the Secretary of State, enclosing the Proclamation for
the purpose; and this was capable of being done in every instance, by
transmitting these letters to the Executive of each State, who might
notify them individually. This had been the course, and he thought it
more correct than the other.
The question on the resolution being taken, was carried, 70 to 32; and
Messrs. QUINCY and BURWELL named a committee to wait on the President for
the purpose.
THURSDAY, November 19.
_British Armed Vessels._
The following Message was received from the President of the United
States:
_To the House of Representatives of the United States_:
According to the request expressed in your resolution of the
eighteenth instant, I now transmit a copy of my proclamation
interdicting our harbors and waters to British armed vessels,
and forbidding intercourse with them, referred to in my message
of the twenty-seventh of October last.
TH. JEFFERSON.
NOVEMBER 19, 1807.
* * * * *
_By the President of the United States of America_:
A PROCLAMATION.
During the wars which, for some time, have unhappily prevailed
among the powers of Europe, the United States of America, firm
in their principles of peace, have endeavored, by justice, by
a regular discharge of all their national and social duties,
and by every friendly office their situation has admitted, to
maintain with all the belligerents their accustomed relations
of friendship, hospitality, and commercial intercourse. Taking
no part in the questions which animate these powers against
each other, nor permitting themselves to entertain a wish
but for the restoration of general peace, they have observed
with good faith the neutrality they assumed; and they believe
that no instance of a departure from its duties can be justly
imputed to them by any nation. A free use of their harbors and
waters, the means of refitting and of refreshment, of succor
to their sick and suffering, have, at all times, and on equal
principles, been extended to all, and this, too, amidst a
constant recurrence of acts of insubordination to the laws, of
violence to the persons, and of trespasses on the property of
our citizens, committed by officers of one of the belligerent
parties received among us. In truth, these abuses of the laws
of hospitality have, with few exceptions, become habitual to
the commanders of the British armed vessels hovering on our
coasts, and frequenting our harbors. They have been the subject
of repeated representations to their Government. Assurances
have been given that proper orders should restrain them within
the limits of the rights and of the respect due to a friendly
nation; but these orders and assurances have been without
effect; no instance of punishment for past wrongs has taken
place. At length a deed, transcending all we have hitherto seen
or suffered, brings the public sensibility to a serious crisis,
and our forbearance to a necessary pause. A frigate of the
United States, trusting to a state of peace, and leaving her
harbor on a distant service, has been surprised and attacked
by a British vessel of a superior force, one of a squadron
then lying in our waters and covering the transaction, and
has been disabled from service, with the loss of a number of
men killed and wounded. This enormity was not only without
provocation or justifiable cause, but was committed with the
avowed purpose of taking by force, from a ship of war of the
United States, a part of her crew; and that no circumstance
might be wanting to mark its character, it had been previously
ascertained that the seamen demanded were native citizens of
the United States. Having effected her purpose she returned to
anchor with her squadron within our jurisdiction. Hospitality
under such circumstances ceases to be a duty; and a continuance
of it, with such uncontrolled abuses, would tend only, by
multiplying injuries and irritations, to bring on a rupture
between the two nations. This extreme resort is equally opposed
to the interests of both, as it is to assurances of the most
friendly dispositions on the part of the British Government,
in the midst of which this outrage has been committed. In this
light the subject cannot but present itself to that Government,
and strengthen the motives to an honorable reparation of the
wrong which has been done, and to that effectual control of its
naval commanders, which alone can justify the Government of the
United States in the exercise of those hospitalities it is now
constrained to discontinue.
In consideration of these circumstances and of the right of
every nation to regulate its own police, to provide for its
peace and for the safety of its citizens, and consequently
to refuse the admission of armed vessels into its harbors or
waters, either in such numbers or of such descriptions, as
are inconsistent with these, or with the maintenance of the
authority of the laws, I have thought proper, in pursuance
of the authorities specially given by law, to issue this my
Proclamation, hereby requiring all armed vessels bearing
commissions under the Government of Great Britain, now within
the harbors or waters of the United States, immediately and
without any delay to depart from the same, and interdicting
the entrance of all the said harbors and waters to the said
armed vessels, and to all others bearing commissions under the
authority of the British Government.
And if the said vessels, or any of them, shall fail to depart
as aforesaid, or if they or any others, so interdicted, shall
hereafter enter the harbors or waters aforesaid, I do in that
case forbid all intercourse with them, or any of them, their
officers or crews, and do prohibit all supplies and aid from
being furnished to them or any of them.
And I do declare, and make known, that if any person from or
within the jurisdictional limits of the United States, shall
afford any aid to any such vessel, contrary to the prohibition
contained in this Proclamation, either in repairing any such
vessel, or in furnishing her, her officers or crew, with
supplies of any kind, or in any manner whatsoever, or if any
pilot shall assist in navigating any of the said armed vessels,
unless it be for the purpose of carrying them, in the first
instance, beyond the limits and jurisdiction of the United
States, or unless it be in the case of a vessel forced by
distress, or charged with public despatches as hereinafter
provided for, such person or persons shall, on conviction,
suffer all the pains and penalties by the laws provided for
such offences.
And I do hereby enjoin and require all persons bearing office,
civil or military, within or under the authority of the United
States, and all others, citizens or inhabitants thereof, or
being within the same, with vigilance and promptitude to exert
their respective authorities, and to be aiding and assisting to
the carrying this Proclamation, and every part thereof, into
full effect.
Provided, nevertheless, that if any such vessel shall be forced
into the harbors or waters of the United States, by distress,
by the dangers of the sea, or by the pursuit of an enemy, or
shall enter them charged with despatches or business from their
Government, or shall be a public packet for the conveyance of
letters and despatches, the commanding officer immediately
reporting his vessel to the collector of the district, stating
the object or cause of entering the said harbors or waters, and
conforming himself to the regulations in that case prescribed
under the authority of the laws, shall be allowed the benefit
of such regulations respecting repairs, supplies, stay,
intercourse, and departure, as shall be permitted under the
same authority.
In testimony whereof, I have caused the seal of the United
States to be affixed to these presents, and signed the same.
Given at the City of Washington the second day of July, in the
year of our Lord one thousand eight hundred and seven, and
of the sovereignty and independence of the United States the
thirty-first.
TH. JEFFERSON.
By the President:
JAMES MADISON,
_Secretary of State._
The Message was read, and, together with the Proclamation, ordered to lie
on the table.
SATURDAY, November 21.
_Sir James Jay._
Mr. JONES moved that the House should, according to the order of the day,
go into Committee of the Whole on the report in favor of the petition of
Sir James Jay. Agreed to, 18 to 29. The report being read with the letter
from the Secretary of State accompanying it,
Mr. TAYLOR opposed and Mr. JONES supported it.
The question being taken on concurrence with the report, the votes were,
in favor of it 45, against it 46; there appearing some doubt whether
this decision was correct, a second count was about to be had, when a
debate took place, in which Messrs. UPHAM, COOK, DANA, QUINCY, LOAN, and
BLACKLEDGE, supported, and Messrs. J. CLAY, GARDENIER, D. R. WILLIAMS,
HOLLAND, TAYLOR, and BURWELL opposed the report.
In support of the report it was urged that the secret mode of
correspondence, for which the petitioner prays a compensation, was very
useful in the Revolutionary War, and no doubt might be again; that the
testimony in favor of the invention was very satisfactory; that there
was on file in the office of the Secretary of State, a letter written by
General Washington in this invisible ink; that Mr. Jay had never received
compensation; that although it had been used by various persons, none had
ever yet known the composition of it but himself; that the report was
only to authorize the President to purchase this secret if he thought
fit, leaving him the judge of its utility.
Those who opposed the report, argued that it was absurd to vote away
money for a thing they did not and could not understand; that there never
yet was a secret ink made but a composition could be invented that would
bring it out, and that possibly Sir James himself might know such a
composition; that the House had no security before them that it was not
or would not be disclosed to other Governments as well as this; that if
secret correspondence was wanted, it had from late occurrences appeared
that Entick’s Dictionary and a key word would afford, by writing in
cipher, sufficient secrecy.
In the course of this debate much wit was displayed in speaking on
different modes of keeping secrets, and the futility of all; with
allusions to the secret proceedings of Congress, particularly those which
took place on the 19th instant, which were said to have been known before
the House took them up. Some amusement also arose amongst the members
from the difficulty of hearing each other, and the consequent mistakes
that took place.
The question on concurrence being taken was carried, 50 to 48.
The committee rose and reported to the House their agreement to the
resolution contained therein; which was read, as follows:
_Resolved_, That it shall be lawful for the President of the
United States to obtain, by purchase, at a reasonable price,
the exclusive right, on behalf of the public, of the system
invented by Sir James Jay, as submitted by him to the Executive
Department of Government: provided, in the opinion of the
President, it will be of public utility and importance to
possess the same.
The House proceeded to consider the said resolution; and, on the question
that the House do concur with the Committee of the whole House in their
agreement to the same, Messrs. J. CLAY and SOUTHARD opposed, and Messrs.
SLOAN, QUINCY, NEWTON, BLACKLEDGE, and CROWNINSHIELD, supported it. The
question was then taken, and decided in the affirmative--yeas 74, nays
53.
TUESDAY, November 24.
_British Aggressions._
Mr. BLOUNT, from the committee appointed on so much of the Message of the
President of the United States as relates to aggressions committed within
our ports and waters by foreign armed vessels; to violations of our
jurisdiction; and to measures necessary for the protection of our ports
and harbors; presented to the House a letter from the Secretary of the
Navy, stating that, in a letter addressed by him, on the twelfth instant,
to the chairman of the said committee, some erroneous information had
been given, and an omission made, which he had since discovered, and
thought it his duty now to correct. The said letter was read, and ordered
to lie on the table.
Mr. BLOUNT, from the committee to whom was referred so much of the
Message of the President of the United States as relates to aggressions,
&c., reported further, in part,
“That the numerous aggressions and violations of our
jurisdiction recently committed within our ports and waters
by British ships of war, whether they are to be regarded as
the effects of positive orders from the British Government, or
as proceeding from that unrestrained insolence and rapacity
in British naval commanders which previously produced the
murder of our fellow-citizen, Pierce, and the perpetration of
many other well-remembered outrages and irritating acts, are
convincing proofs of the necessity of placing our ports and
harbors, as speedily as possible, in a situation to protect
from insult and injury the persons and property of our citizens
living in our seaport towns, or sailing in our own waters,
and to preserve therein the respect due to the constituted
authorities of the nation.
“That the committee, having maturely considered the subject,
are of opinion that the protection desired can be best and most
expediously afforded by means of land batteries and gunboats,
as they have been induced to believe that by a judicious
combination and use of these two powers, effectual protection
can be given, even to our most important seaport towns, against
ships of any size unaccompanied by an army.
“That our most important ports and harbors, and those requiring
the earliest attention and the most expensive fortifications,
are, New Orleans, Savannah, Charleston, S. C., Wilmington, N.
C., Norfolk, Baltimore, Philadelphia, New York, New London,
Newport, R. I., Boston, Salem, Newburyport, Portsmouth, N. H.,
and Portland.
“And that the ports, harbors, and places of minor importance
requiring protection, and which may be protected by less
expensive works, are, St. Mary’s, Ga., Beaufort, and
Georgetown, S. C., Ocracoke, Albemarle Sound, James River,
York, and Rappahannock Rivers, Potomac, Patuxent, Annapolis,
and Eastern Shore, Md., Delaware Bay and River, Egg Harbor, N.
J., Amboy, Long Island, Connecticut shore, Tiverton, R. I., New
Bedford, Marblehead, and Cape Ann, York, Kennebunk, and Saco,
Kennebeck, Sheepscut, Damarescotta, Broad Bay, and St. Georges,
Penobscot, Frenchman’s Bay, and Passamaquoddy Bay.
“Wherefore, your committee holding themselves bound, by the
tenor of the resolution referred to them, to report hereafter
their opinion of the expediency of interdicting the waters
of the United States to foreign armed vessels, according as
circumstances, now unknown, may, when known, seem to require,
submit the following resolutions, viz:
“_Resolved_, That it is expedient to authorize the President of
the United States to cause such fortifications to be erected
as, in addition to those heretofore built, will, with the
assistance of gunboats, afford effectual protection to our
ports and harbors, and preserve therein the respect due to the
constituted authorities of the nation; and that there be, and
hereby is, appropriated for that purpose, out of any moneys
in the Treasury not otherwise appropriated, the sum of ----
dollars.
“_Resolved_, That it is expedient to authorize the President
of the United States to cause to be built an additional number
of gunboats not exceeding ----, and to arm, equip, man, fit,
and employ the same for the protection of our ports and
harbors; and that there be, and hereby is, appropriated for
that purpose, out of any moneys in the Treasury not otherwise
appropriated, the sum of ----.”
The report was referred to a Committee of the Whole on Thursday.
TUESDAY, December 1.
Mr. QUINCY offered the following resolution:
_Resolved_, That the Secretary of the Department of War be
directed to lay before this House an account of the state of
the fortifications of the respective ports and harbors of the
United States, with a statement of the moneys appropriated for
fortifications remaining unexpended; and an estimate of the
sums necessary for completing such fortifications as may be
deemed requisite for their defence.
Which being under consideration,
Mr. Q. said the House would perceive the object of this resolution was to
obtain information; there was a document on their table which gave some
information on the subject, but was not explicit. This resolution was
exactly similar to one passed last session, by which the House obtained
some important and interesting information; this being the case, he hoped
no objection would be made to it.
The resolution was agreed to without a division.
_Soldiers of the Revolution, &c._
Mr. RANDOLPH rose and said, that as long as the subject of national
defence was in possession of a respectable committee of the House, and
as long as their report was pending before it, he had deemed it, if
not improper, at least unavailing in him, to offer any thing upon that
subject. But, that committee having reported, he saw, from the course
which the debate had taken yesterday, a necessity so pressing that he
could no longer dispense with it, for offering some propositions on
this most important subject. These propositions grew out of the almost
universal impression which seemed to exist that there was but one
peculiar mode of defence to which the nation could turn itself in this
perilous juncture of their affairs. When so great an appropriation was
demanded for this favorite expedient, he feared, that if other plans of
defence, which had at least as high claims to the public attention, were
not now brought forward, they might hereafter find an empty Treasury, and
be compelled to resort to the system of loans, recommended by the head of
that department, as the only means, however precarious, of providing for
them.
It had always been his opinion, that whether in war or in peace,
there was one system of national defence which ought sedulously to be
cherished, and concerning which there could not exist a contrariety of
opinion between any two men in that House, or out of it; and he had
hoped that the attention of the committee (for there were more than one)
would have been directed towards it. Were they not told, and was it not
self-evident, that if matters came to the last extremity we should not
only have an extensive frontier exposed to the inroads of the enemy’s
continental possessions, but that a vast line of country, from Detroit
to Natchitoches, would have the native savages let loose upon their
dispersed and almost defenceless population? Did there exist then no
necessity for defence but of a few places on the coast, the depots of
privileged wealth, when the whole line of back settlements were left
at the mercy of the enemy and their savage adherents, without a force,
even upon paper, to protect them? If it should be said that there
existed no obligation on the Union gratuitously to bestow arms upon the
individual States which had failed to furnish themselves, the same reason
would apply yet more forcibly to the fortification of States which had
neglected to provide that species of self-defence. In the one case the
arms issued were still the general property, at all times disposable for
the good of the whole; in the other, the fortifications were so much real
estate, vested in the country where erected; fixtures to the freehold. It
appeared to him that, whether they considered themselves in a state of
profound peace, or on the eve of war, or (as he feared would prove to be
the case) in actual war, it behooved them to arm the natural defence of
their country; to rely, as had been said by a gentleman from New York,
not upon delusive theory but established practice; upon that which,
heretofore, had carried them triumphant through danger, and upon which,
when they could no longer depend, there was an end of our existence as a
nation.
There was another subject to which he hoped the committee would also have
turned their attention, one on which, as on the first, no two men could
differ; not like gunboats, perishable in its nature, and susceptible of
dispute as to its utility, which remained to be tested by experience; a
train of formidable artillery, that might not only oppose the enemy in a
particular harbor, but calculated to change its position, to bear upon
his armed vessels wheresoever they might lie, to compel him to quit our
waters, and even, if he should effect a landing, confront him under any
possible change of circumstances. He was the more inclined to hope that
his opinion would prevail upon this subject, when he heard a gentleman
whose influence was almost decisive in that House--he trusted that it was
deserved--declare that terra firma was our natural element, that it was
madness to dream of coping with the enemy on his own vantage ground: and
yet all the provision which they had thought of making, was to fight him
with his own weapons. He reminded the House with what striking effect his
friend from Maryland, (Mr. R. NELSON,) whose military experience entitled
him to a peculiar weight in this matter, had on a former occasion
cautioned them, that erect what fortifications they might, the enemy were
not obliged to lie before them; that ships of war were a movable force on
the water, and to be resisted with effect must be opposed by a movable
force on the land.
These were the two leading measures which were impressed on his mind as
proper to be adopted. Muskets in the hands of our citizens, and cannon in
our arsenals, were so much national wealth, even exclusive of the idea
of present national danger. The uses to which they were to be applied
under any possible emergency, were not susceptible of dispute. No man
could arraign this as a visionary plan of defence, as had been done with
respect to gunboats and fortifications. Upon them however he should say
nothing at present, except that he thought his the preferable mode of
defence, and one entitled to be provided for, before the Treasury should
be drained for less worthy purposes.
But there was another and more important measure, which ought to precede
any step which the House might take for defence. It was a measure of
justice; which would not only entitle them to success, but was eminently
calculated to insure it; a measure which would unite all hearts, and
nerve every hand in the cause of their country. It would do away the
stigma of suffering those who had fought and bled in their service, to
starve in the streets. With what face could the Government call upon
the youth of the nation to turn out in the public defence, when their
eyes were every where assailed by the spectacle of their countrymen and
kindred, veterans of the Revolution, who had raised the proud fabric of
our independence, begging from door to door a morsel of bread? It was
impossible to contemplate the condition of these gallant men, who, after
giving to their country every thing, were consigned by it to beggary
and want, without sensations of indignation and shame, as well as of
commiseration. But it is a subject, said Mr. R., on which I will say no
more; I cannot supply feelings to those who are destitute of them; and I
should as soon undertake to raise the very dead as to excite those whom
the subject itself is unable to move. He concluded by offering three
resolutions, calculated to meet the objects he had in view, professing
himself, at the same time willing to submit to any amendment which did
not alter their substance.
Before he handed these resolutions to the Chair, Mr. R. said he would
obviate an objection which might be made at the first; that they had
already a law to provide for these persons. To the disgrace of the
statute book, they had a pension law. What was the provision? That a man
who had incurred disability by known wounds during the Revolutionary war,
after being tied down to the most minute proofs, which in most cases,
from the death or removal of his old companions in arms, he was unable to
give, although the fact might be of general notoriety, was, if he could
surmount all the difficulties thrown in his way, entitled to a miserable
annuity, to take date, not from the time when the disability occurred,
but; from the time when his claim should be established. So that the man
whose keen sensibility had restrained him from applying to the public for
relief, who had struggled on, in the hope of better days, till the last
gasp, was put off with a pension, which so far from discharging the petty
debts which he might have contracted previous to his application, would
hardly keep soul and body together; when, if his pension were to take
date from the time of the service being rendered, as in common justice it
ought to do, he might be placed in comparatively easy circumstances.
Mr. R. then submitted to the House the following resolutions:
_Resolved_, That provision ought to be made, by law, for an
adequate and comfortable support of such officers and soldiers
of the late Revolutionary army as are still existing in a
state of indigence, disgraceful to the country which owes its
liberties to their valor.
_Resolved_, That provision ought to be made, by law, for arming
and equipping the whole body of the militia of the United
States.
_Resolved_, That provision ought to be made, by law, for
procuring a formidable train of field artillery for the service
of the United States.
The resolutions were referred to a Committee of the whole House to-morrow.
WEDNESDAY, December 2.
Another member, to wit, from Delaware, NICHOLAS VAN DYKE, appeared,
produced his credentials, was qualified, and took his seat in the House.
_Soldiers of the Revolution._
The House went into Committee of the Whole on the resolutions offered
by Mr. RANDOLPH yesterday; and the first resolution being under
consideration, as follows:
_Resolved_, That provision ought to be made, by law, for an
adequate and comfortable support of such officers and soldiers
of the Revolutionary army as are still existing in a state of
indigence, disgraceful to the country which owes its liberties
to their valor.
Mr. RANDOLPH said he trusted that on this resolution there would exist in
the House, as there did in the nation, but one sentiment. The provision
which had been made for the officers and soldiers of the Revolution
was notoriously scanty and mean. Who, he asked, enjoyed the carrying
trade for which, two years ago, we were near being plunged into a war?
Emigrants since the peace of 1783. Men who ran no risk--who put nothing
to hazard--whilst those who met the enemy in the field, with the gibbet
staring them in the face at the same time, were left to pine in want and
obscurity. Had the persons who achieved this right to trade with every
quarter of the globe less claim to the benefits acquired by their blood
than the man of yesterday? But they had no capital for such enterprises.
They had sown that others might reap. The very lands which they had won
with their swords had become the prey of rapacious adventurers. Should
the fruits of the Revolution inure to the sole benefit of those who never
put their persons to hazard, or even spent one dollar for the acquisition
of our independence? He reminded the House of the pathetic appeal which
had been made on a former occasion by one of its oldest members, (Mr.
VAN CORTLANDT,) whom he hoped would long enjoy his seat there: “We shall
not prove very chargeable to you--there are but few of us left, and they
are daily dropping off--you will not be burdened with us long--most of
us have broken our constitutions in the public service.” Mr. R. hoped
that provision would be made for these gallant veterans--living monuments
of the ingratitude of their country; that every man who had a claim on
the public for services rendered during the Revolution, would be made
comfortable for life, unless his own misconduct should forbid it.
Mr. QUINCY said he did not rise to make objections to the general object
of the resolution; but there was one part which he did not think it
decorous for the committee to adopt; he meant the epithet _disgraceful_.
He was not prepared to fix a disgrace upon the nation by his vote; if
it were true that it was disgraced, he should wish more evidence of the
fact than had been exhibited on that floor. Were he even to admit that
it was a disgrace, he was not willing to turn the eyes of the world upon
the shame of his country. In another point of view he objected to this
declaration, as it would, by a strained or forced construction, limit
the provision contemplated to be made. He should not offer an amendment
to the resolution, because he trusted the gentleman himself would amend
it. It would, however, meet his wishes either to strike out the last
declaratory sentence, or to strike out the words “disgraceful to the,”
and insert “in a.”
Mr. RANDOLPH said that he did not feel for his resolution that sort of
parental affection which authors were supposed to bear towards their
works. The language was perfectly immaterial to him, so as it embraced
his object. He thought it needless in a matter of this kind to attend to
those verbal niceties with which the gentleman from Massachusetts had
amused himself and the committee. So far from disgracing the country,
he thought the acknowledgment in question the first step towards wiping
off the stigma--a sort of atonement; and if the nation was disgraced, it
was their duty as faithful servants to tell her so, and not to flatter
her with the success of her arms, and persuade her that she was the very
mirror and pink of chivalry, when they knew to the contrary.
It was matter of notoriety, and as such it was proper for the House to
act upon, that there existed a great number of citizens in this nation in
a state of indigence, who, if their country had done its duty, might, and
probably would, have been in far different circumstances. This failure on
the part of Government had thrown the evidences of their claims into the
hands of men, many, if not most of them, emigrants since the Revolution.
He asked whether our public lands, our free commerce--every blessing of
our country--should be participated by those who had sacrificed nothing
to our independence, and the men who achieved it be suffered to live and
die in wretchedness? This was the question which he had propounded to the
House, and those who could not comprehend it in its present shape, would
not be assisted by any explanations which it was in his power to give.
He knew comparisons were odious, but he must be permitted to make one.
He would compare the services of Captains Lewis and Clarke, in exploring
the continent of the Pacific Ocean, and their remuneration, with the
hardships and dangers of the soldiers of the Revolution and their reward.
He had no disposition to undervalue the services of those gentlemen and
their companions; far from it. He thought them deserving of what they had
obtained, and he had voted accordingly. But he should be guilty of gross
injustice were he to aver that their labors had been as important to the
United States as the services of those who had fought their battles,
before they were United States. Yet, what a wide difference in their
remuneration! On the one side, ample compensation; on the other, the
statute of limitation, or perhaps a scanty pension. Mr. R. wished this
subject to be taken up on the broadest ground--that where services could
be shown, they should be recompensed--that the State should take the
sufferer under her protection, and secure him from want.
Mr. THOMAS asked the gentleman who moved this resolution, whether he
intended to confine his provisions to the officers and soldiers of the
Revolutionary war, and not to extend relief to other sufferers? It was
well known that there were many others in the service who suffered
equally with those in the army--some of whom had lost their limbs, and
others who performed meritorious services--and were of as much benefit
as soldiers. Were they excluded by the resolution? It was but lately that
an officer, who commanded one of our armed ships in the Revolutionary
war, was in a state of almost starvation; and there were many more equal
sufferers and equally meritorious with those who served in the army.
Mr. RANDOLPH could only say, that his object was to provide for every man
who had fought, whether in the militia, the regular army, or the navy.
Mr. QUINCY said he really had not meant to amuse the House or the
gentleman from Virginia by the observations which he had made. In certain
cases words were things, and certainly this was one of those cases. Would
the committee declare their own disgrace by passing the resolution as
it now stood? No; they would declare their country to be disgraced. He
could not consent to this. He therefore moved, as he wished to make as
little alteration in the resolution as possible, to strike out the words
“disgraceful to the,” and insert “in a.”
Mr. RANDOLPH did not perceive the necessity of the amendment, neither
was he very tenacious of the language of his resolution. The object
of it alone was dear to him. Yet, there were occasions in which it
behooved men, and nations too, to confess their sins. He thought the
present one of them. Would the State of Georgia, for instance, have
done herself more honor, if, instead of passing sentence of indelible
disgrace on the Legislature which passed the famous law of the 5th of
January, 1795, commonly called the Yazoo act, and expunging it from
her records, she had faintly censured its authors and their abettors
by a dainty circumlocution? He feared he would not be pardoned for
introducing the Yazoo act in this case, since he had seen a most
respectable Representative from the State of Georgia, (Mr. TROUP,)
attacked on all sides for daring to lisp the word Yazoo. They were told
it was a worn out thing. That the House and the people were tired of
it. That, like the cry of wolf in the fable, it had been repeated until
no one would heed it. Mr. R. said that those who calculated in this way
reckoned without their host. The people of the Union could never become
familiarized and hardened to acts of corruption, by whomsoever they might
be practised or patronized. Whether the words were stricken out or not,
was perfectly immaterial to him. Perhaps, in rendering the censure more
delicate, it was only rendered more severe. He thought the situation of
these gentlemen--for gentlemen they were, by the most honorable of all
titles, the sword--disgraceful to the country. Whenever the country was
disgraced, he was for confessing it, that the people might be roused to
wipe it away. For this reason he had said that the navy of the United
States was a disgraced navy, and he should continue to say so until its
character was retrieved.
Mr. QUINCY said he was as willing as any gentleman to confess his own
sins, but did not like to cast censure on other people, much less on his
country. They would declare, by passing the resolution as it now stood,
that their country was disgraced. He hoped they would not do it. He had
no objection to the House confessing its own misdeeds. Let us, said he,
work out our own reformation, but not pass a censure on our country. He
declared his objection to the resolution to extend no further than to
those words.
The amendment moved by Mr. QUINCY was then agreed to without a division;
and the question recurring on the original resolution,
A motion was then made for the committee to rise, and carried--75 voting
in favor of it.
TUESDAY, December 8.
_Fortifications and Gunboats._
On motion of Mr. BURWELL, the House went into a Committee of the Whole
on the bill from the Senate for building gunboats, and the bill for
fortifying our ports, as reported by the Committee of Aggressions.
The bill from the Senate being still under consideration,
Mr. MILNOR said, when he was on the floor yesterday, and interrupted by
the message from the President, it was his intention to have moved an
amendment. The bill provided for building one hundred and eighty-eight
gunboats; he moved to strike out the words “and eighty-eight,” so as
to reduce the number to one hundred. He thought a hundred gunboats in
addition to those they already had, would be fully sufficient, if they
also adopted other modes of defence. He had yesterday stated that he did
not believe the building additional fortifications, and an additional
number of gunboats, would effect the object which appeared to be
contemplated by the committee. He confessed he did not place as much
reliance in gunboats as some gentlemen did. While he thought they might
be useful in aid of land batteries or frigates, it was also his opinion,
that if gentlemen examined the statement respecting different aggressions
by a certain power, they would find that not one single act of aggression
could have been prevented or punished by any batteries on land or
gunboats in aid of them. They were not committed in the face of our
batteries, or in that part of our ports and harbors where the gunboats
could have acted with effect; they were committed within the mouths of
our rivers, or just outside them. He thought the construction of a few
frigates would be expedient, in addition to those now in our possession.
They might act with gunboats; and might drive any foreign nation either
to the necessity of bringing a large force on our coasts, and keeping it
all together, by which the number of their aggressions would be lessened,
or expose their fleets to a force which would be able to avenge the
insults offered to us.
Mr. BURWELL said he should vote against the amendment proposed, and
in favor of the number reported by the Committee of Aggressions, as
contained in the bill from the Senate now under discussion. It appeared
to Mr. B. that the gentleman from Pennsylvania had taken a very incorrect
view of the subject. That gentleman has objected to this law because
it did not make provision for ships of war to serve as a defence to
our commerce, and because he supposed the committee had taken up this
mode of defence to the exclusion of any other. Mr. B. said it must be
obvious to every gentleman that it was almost impossible to have crowded
into one bill all the measures of defence which might become necessary;
thus it contained no provision for arming the militia, for raising a
standing army, building or repairing frigates, &c. The only question now
was, on building a number of gunboats, for defence against the attack
of a foreign nation. He thought a sufficient number should at once be
authorized: for if the number were insufficient to answer the intended
purpose, the money expended in their purchase would be so much thrown
away; so much expended from which the public would derive no benefit.
The opinions of those men best acquainted with the force which might be
necessary, which had been communicated to the Committee of Aggressions,
has stated this as the competent number.
With respect to the expense of building gunboats, it would be found that
the cost of building a frigate would be much greater than a number of
gunboats equal to the number of guns carried by a frigate. The Secretary
of the Navy had estimated the annual expense of gunboats at $11,000.
Mr. B. admitted that the sum appeared enormous, and it remained for the
consideration of the House whether they would expend so large a sum for
that purpose. The estimate of the Secretary of the Navy went upon the
ground that during the whole of the year, forty men would be required
to man each of these boats. Mr. B. thought that regulations might be
adopted, that would render eight or ten men sufficient to be regularly
employed on board these boats; a sufficient force fully to man and
use them upon occasion might be organized from the different ports or
seaport towns; and it would be found, by recurring to the President’s
Message, that the same idea had been entertained by the Executive. And
he believed, that although the Secretary of the Navy had estimated
$11,000 as the sum necessary for the annual expense, he had done it on
the supposition that forty men would be employed during the whole year in
each gunboat. At times when Europe and the United States were at peace,
it would not be necessary that more than a small portion of those boats
should be afloat; they might be kept in ordinary, relying on the seamen
of the port for any sudden emergency.
With respect to the propriety of building gunboats, he would observe that
they were not a mere experiment; they were sanctioned by the practice of
Europe, and were very beneficial for the defence of ports against sudden
attack. The French, Spanish, Dutch, and other nations, in the vicinage
of the British Navy, had combined their boats with land batteries, for
the purpose of defence against the assaults of that formidable Navy.
These boats were also a part of a system heretofore practised in other
countries, and proposed to be further pursued here.
Mr. CROWNINSHIELD said that there was some inconsistency in the
observations of the gentleman from Pennsylvania; he had said gunboats
would be useful with the aid of large vessels, and at the same time said
they were entirely useless in the mouths of rivers or deep waters. [Mr.
MILNOR explained that he had meant they would be useless when acting
alone.] Mr. C. said he had formed a very different opinion, indeed,
from that expressed by the gentleman from Pennsylvania with respect to
gunboats. It was well known that no longer ago than the year before
last, this Government had employed eight or ten gunboats to assist in
the attack on Tripoli; they all crossed the Atlantic in safety, except
one boat. Although they did not come into the attack on Tripoli, because
a peace was prematurely concluded, yet he himself had heard the late
Commodore Preble say that, without them the squadron would not have been
competent to have made an effectual assault on the city. These boats then
kept the sea in very tempestuous weather, a fact which the despatches
from the commanding officer had announced. He believed that they could
not at this time adopt a better mode of defence than that proposed by the
bill. He should be sorry to see the proposed number reduced, because he
believed they would render important services, if at any time our ports
or harbors should be attacked. These gunboats were not boats that would
sink the moment they got into rough water; they were boats of 60 or 70
tons burden, which might navigate the globe with safety. He spoke from
experimental knowledge. The gentleman surely did not mean to say they
could not swim. In Mr. C.’s opinion, there could be no better system of
defence in aid of fortifications than that proposed by the bill.
Mr. BLOUNT presumed the gentleman would admit, as a certainty, that it
was the duty of the House to provide effectual protection. The select
committee having determined, in their own mind, that the best system of
defence would be composed by fortifications and gunboats, had inquired
what number, would be of use. The answer to this inquiry was already
before the House; it was stated that the United States had already
69 gunboats--that 257 were the whole number which might be usefully
employed; consequently that 188 were wanting. If it were the object of
gentlemen to afford a certain protection to the country, he hoped they
would not hesitate to pass this bill. If the gentleman from Pennsylvania
should be able, when the subject was properly before them, to prove to
Mr. B. that frigates or ships of war would add to the protection which
might be afforded by fortifications and gunboats, he would vote with him
for their construction. It would be time to discuss this when the subject
was before them. He hoped the idea of the utility of a naval force would
not induce gentlemen to withhold from the Executive that force which
they had signified as necessary for the protection of our ports and
harbors. If any doubt were entertained by gentlemen who were not members
of the last Congress, there was a report, which he held in his hand,
made at a former session, containing the opinions of naval officers on
the expediency or utility of these boats. The report was lengthy, and he
should not call for the reading of it, except gentlemen wished it. There
was, however, no necessity to demonstrate their utility, as no gentleman
had attempted to show that they were not eminently and essentially useful
as one species of defence.
The gentleman last up has stated that I wished this mode of defence
because it was the wish of the Executive. I stated expressly, and the
gentleman must so have understood me, that the committee had selected
this number of gunboats because they were informed that this number
would be necessary. I referred to the document where this statement is
expressed and where it may be found. I meant to express the opinion, that
if we built a less number than necessary, it would be a waste of public
money; and that protection would not be obtained by a less force than
that which is proposed.
Mr. B. also said that the 88 gunboats would cost $440,000; that sum,
when applied to the building of a large frigate, would not complete her;
and when built, she would carry but 44 guns, one-half the number of
guns which would be carried by 88 gunboats; besides which, the expense
of rigging and making her fit for service would be enormous. Thus, by
building one frigate only at the same expense as would complete 88
gunboats, they lost 44 guns, besides the additional expense of fitting
out and manning the frigate. He had, however, only risen at this time to
explain that he had been misrepresented when it was stated that he had
said he should vote for this number of gunboats because the Executive had
recommended it.
Mr. SMILIE said the question was, whether they would appropriate a
certain sum of money for the defence of their ports and harbors. He had
not heard it said, and he hoped it never would be said, that they ought
to defend themselves beyond their own shores. He confessed that he was
now called upon to give his vote on a question to the decision of which
he was not competent; but it being his duty to decide, he should, on this
as on other subjects with which he was not well acquainted, depend upon
the opinions of those who were. He believed many gentlemen in the House
were in the same situation with himself, not being acquainted with naval
affairs. It was the duty of the Executive to communicate information
in answer to any inquiries which it was necessary to make. They had
performed that duty, and the answers were in favor of gunboats. Should
he then pursue any opinion of his own in contradiction to this, when he
had no evidence on which to ground that opinion? Certainly not; he should
depend upon those who possessed better information on the subject than
himself, except there was something so absurd in their opinions that he
could not swallow it.
Mr. CHANDLER said, when they had information from actual examination,
that the contemplated number of gunboats would be necessary, he did
believe that the proposed sum should be appropriated to that object. The
gentleman from Pennsylvania, who had moved this amendment, professed
himself as willing to protect our ports and harbors as any gentleman, but
wished to strike out part of the number of gunboats, in order to adopt
another mode of defence. Admitting that a frigate could be built for the
sum which would complete eighty-eight gunboats; could he demonstrate
that the force of forty-four guns would be equal to eighty-eight of
heavier metal? Another thing he would mention; when the gunboats were
constructed, a part of them might be removed, and they could increase or
diminish the force at any particular place, as occasion might require;
if they had one frigate in place of them, they could not divide her
strength, and it could be retained at one point only.
Mr. NEWTON said it was not his intention to take up the time of the
committee in a disquisition on the subject of gunboats; though, were he
to attempt it, he had no doubt but he might be equally qualified with
some gentlemen who had displayed their eloquence on this occasion. He
thought they should now take into consideration the situation of the
country in relation to Great Britain. Why were they now talking of
defence, of fortifications, and of gunboats? Because they had arrived
at a perilous crisis; the nation had been attacked; the blood of its
citizens had been spilled; and they must have war, if reparation were
not made. They heard by the papers that a Minister was to be sent to
negotiate on the subject; but when that Minister arrived here, would
any gentleman say that they would receive that reparation which he was
prepared to offer? He believed not. When our affairs were thus situated,
and as the gentleman from North Carolina (Mr. MACON) said a few days
ago, when they were actually in a state of war, ought they not to make
a better use of their time and the public money, than in debating on
the details of a bill? If a treaty with Great Britain were laid upon
their table at this moment, should they for that reason desist from
preparations for defence? No; that nation had trampled on every moral
principle; there was no faith in her; paper and parchment were no
security for her good conduct. If they wished to be respected by that
power, they must place themselves in a situation to return injury for
injury; to retaliate on her for the violations of their rights. When
they did this, they might expect something like decency of conduct, or
respect for their rights from that power; until they put themselves in a
situation to command her respect, they would in vain expect to receive it.
Mr. GARDENIER said that although he was not one of those who entertained
a great passion for gunboats, yet he could see certain situations in
which they would be useful in aid of fortifications; but they should
be restricted to a certain number. The mode of fortification which
was proposed, was by gunboats and batteries; and the proportionate
expenditure for these two objects, how much for one, and how much for the
other, was a subject which would engage the attention of the House when
it came properly before them. He should feel no objection to vote for the
whole number of gunboats, were he certain at the same time that enough
would be appropriated for land-batteries and other objects.
Mr. MASTERS said, if the amendment of the gentleman from North Carolina
(Mr. BLOUNT) had for its object to authorize the President to dam up
the Hudson River by sinking blocks, he trusted the good sense of the
committee would reject such a preposterous proposition. The injurious
consequences of such an experimental measure to the city of New York,
and the State at large, would be beyond calculation. It would, in all
human probability, inundate, in high freshets, a considerable part of
the town; and in low water, in the summer season, so prevent the influx
of water as to cause the tide to recede more than thirty miles, and ruin
a number of most flourishing towns one hundred and seventy miles up the
river. The effects would be ruinous to one of the finest rivers in the
world. It was a well-known fact that sinking the piers of Westminster
bridge, in the river Thames, caused the tide to recede in that river
upwards of seven miles; take the same data for calculation, and the tide
in Hudson River would recede more than fifty miles. This, said Mr. M., is
a visionary scheme to evade the real object of defence, and to introduce
false notions of economy. Whenever we attempt to make appropriations for
permanent forts and batteries, expense and economy are brought forward
as an objection. The objects of necessary defence, and a prudent,
well-regulated economy, can be easily reconciled; but your plausible and
popular sound of economy, which is always the sweeping argument when
this and similar measures are under consideration, is like a fine net,
which is intended to catch every thing, both great and small. It may
serve for a fine fancy to fill up a speech with, but will not answer for
fortifications. It will endanger the nation by keeping us defenceless
and weak, tempt aggressions, and invite the destruction of our seaport
towns. Where, then, will be your economy?
Mr. QUINCY said he would only ask the gentleman from North Carolina,
as to his precise meaning in inserting the word “works.” This word
was, perhaps, in common life, confined to constructions other than
fortifications; he believed, however, it might include fortifications
also. When he had asked the question as to the species of works
contemplated to be erected, he had no conception that it was possible,
under an expression of this kind, to comprehend the sinking of blocks to
choke up the harbor of New York; for he had thought the erection of works
was putting up, whilst sinking blocks was putting down. He had, however,
a different object in rising. He had understood it to be the intention
of this bill not only to authorize the repair of old fortifications,
but the erection of new ones; and the bill as it stood antecedent to
the gentleman’s amendment, might have been competent to that end. Now,
as the gentleman had amended it, it would imply works different from
fortifications as he understood. If indeed it were the real object of the
gentleman to repair old fortifications only, and not to erect new ones,
the bill would now answer his purpose fully. If it were otherwise, he
conceived the language was not correct.
Mr. BLOUNT said he felt very little solicitude as to the fate of his
motion. His intention was to give a greater latitude to the discretion
of the President. He would not, however, undertake to dispute with the
gentleman from Massachusetts on the precise meaning of words; for he had
not spent his early life within the walls of a college, as that gentleman
had, but in the field, fighting for the liberties of his country. Under
the belief that the word _works_ did include fortifications, he had made
his motion for amendment. It was the intention of the committee both to
erect new works and to repair old ones. If the gentlemen from New York
and Massachusetts were determined to restrain the President from giving
that protection to the port of New York which the people of that State
should think proper, he was content. He did not wish to waste the time of
the House unnecessarily, especially on a subject which required so much
expedition.
Mr. COOK said he lived in a port in which there was sufficient depth
of water for any British man of war, and he thought he should feel as
indignant at any proposition for destroying the harbor as the gentleman
from New York. He hoped the feelings of other gentlemen in the House
would be in unison with his. If they were arrived at such a point of
degradation, that, in case of attack, they must retreat to or beyond the
mountains, and if instead of defending they must abandon the coast to
its fate, they had better adopt this measure, and block up their ports
altogether. After such a proposition as this, he should not be surprised
at any one which could be made; it appeared to him that the spirit of our
forefathers was departing the country. He was alarmed when he heard such
a proposition as this, and he hoped there would be sufficient magnanimity
in the House to give the amendment a decided negative.
WEDNESDAY, December 9.
Another member, to wit, EDWARD ST. LOE LIVERMORE, from Massachusetts,
appeared, produced his credentials, was qualified, and took his seat in
the House.
_Fortifications and Gunboats._
The House proceeded to consider the amendments reported yesterday by the
Committee of the Whole to the bill, sent from the Senate, entitled “An
act to appropriate money for the construction of an additional number of
gunboats.”
Mr. DURELL said, as there appeared to be a considerable diversity of
opinion on this gunboat business, and as a number of gentlemen from, the
North did not readily fall into the scheme of the Southern gentlemen,
and as he was from the North, he would state some reasons why this bill
should not pass. He thought, as every gentleman appeared to think, that
this was a crisis which called for union and great exertion; the great
object was, to arm the nation to meet an event which they would be called
to meet ere long. The question was now on one species of this arming, on
which there were different opinions.
It appeared that, in addition to fortifications, the precise number of
one hundred and eighty-eight gunboats was called for. A question had
been asked, why that number was exactly calculated as being necessary;
the chairman of the committee, who reported the bill, states that this
number was thought necessary by the Executive Department. It was not to
the system of gunboats that he had an objection, for he believed that,
to a certain extent, they might be useful; but he did not believe that
gunboats in connection with fortifications, would attain the end for
which they were acknowledged to be proposed. In casting his eye over the
documents before him, he perceived that gunboats were assigned to certain
situations in the North, where he was confident they could never be of
use. He was positive of this fact. Four gunboats were assigned to the
port of Portsmouth, New Hampshire. He would appeal to gentlemen in the
House, acquainted with the situation of that port, whether they seriously
believed that four gunboats, or that twenty, would be of any service
there? It was impossible that they should; the situation of the port,
the strength and rapidity of the tide, were such that they could not be
used. The same observation would apply to a number of ports east of that;
it was generally conceded that gunboats were not calculated for deep and
turbulent waters; the Northern shores were not sand banks, and gentlemen
seemed to think these were necessary to allow gunboats to defend even
themselves.
He saw that for the ports of Norfolk and New York, there were assigned
a large number of gunboats. He was inclined to believe that a number of
frigates, to the amount of the expense of these gunboats, would be more
consonant with the wishes of the people in the mouth of the Hudson, than
so many gunboats.
One hundred and twenty-eight gunboats to Norfolk and New York! The
expense of sixty-four, one half of this number, would be fully equal to
the expense of four forty-four gun frigates; and he was of opinion that
these, at one-half the expense, would be considered by the gentlemen
from Norfolk and New York, and by the House, as better calculated than
gunboats to defend those ports. Mr. D. could see no reason why they
should not have their choice in this respect. He, therefore, concluded
with moving to strike out “one hundred and eighty-eight gunboats,” and
insert “one hundred and twenty-four gunboats, and four forty-four gun
frigates.”
Mr. BLOUNT called for a division of the question, wishing the first
question taken on striking out.
Mr. GARDNER felt very conscious of the importance of fortifying the
various ports and harbors of the United States, and should give the bill
his support on its passage; but he had been in hopes yesterday that
the amendment proposed by the gentleman from Pennsylvania, would have
prevailed. He wished to see the system of gunboats put into operation,
and to see the efficiency of that mode of defence properly tested. There
appeared to be many different opinions on the subject; and he perceived
the House would not be satisfied till the experiment was tried, and their
utility known. He was willing that as many gunboats should be employed as
was sufficient for defence in those waters where they might be useful;
but he did not think they would be efficient in the Northern and Eastern
ports of the United States. He should be obliged to gentlemen if they
would strike out a part of this number of gunboats, and appropriate
the sum applicable to them to another mode of defence. There appeared
to be a large majority in favor of the bill, but if they would be so
condescending as to fortify the Northern ports in a way most agreeable to
the people interested in their defence, he should feel gratified at it.
He was in favor of the amendment, though he would rather a large number
should be stricken out; and hoped the question on striking out would be
carried, whether ships of war were inserted or not. It had been yesterday
said, by a gentleman from Virginia, that if a less number were built than
that proposed, they would be useless. This argument could have no weight
with those who did not think they would afford defence at all; but, for
his own part, he should vote for any thing in the shape of defence, till
it should be found insufficient by experiment.
Mr. BACON observed, that some gentleman had undertaken in themselves, to
represent the whole Northern part of the Union, and had expressed their
wishes that the House would condescend to listen to the united prayers
of the representatives from those States. He only rose to say, that he,
for one, protested against being considered as joining in that request.
He was of opinion that the mode embraced by the bill would better accord
with the sentiments of the people of the Northern States, than that
which those gentlemen had proposed. He had no intention of making any
calculation on the subject, because he did not consider himself qualified
to do it; but would barely observe that, were the question fairly tried
in the Northern interest, those gentlemen would be found in the negative.
Mr. CROWNINSHIELD said he considered the present proposition as much the
same with that which was yesterday offered in Committee of the Whole, and
to which the committee was decidedly opposed. He trusted the decision of
the House to-day would be the same as that of the committee yesterday.
He thought his friend from New Hampshire was extremely mistaken in his
calculations of the comparative expense of gunboats, and frigates of
forty-four guns. It would be seen by the report of the Secretary of the
Navy, that the estimates for gunboats would amount to about $5,000;
and he thought it would not go beyond it. Taking this for granted, the
gentleman’s calculations of expense must fall to the ground. Mr. C.
then stated the expense of frigates which had been built, from which it
appeared that the expense of building one frigate was fully as much as
that of sixty-four gunboats. If they proposed to strike out this number
of gunboats in order to build frigates, they must add a sum of one
million of dollars to the appropriation.
Mr. SAWYER said it was not his intention to trouble the House often with
his observations; for, being but a young member, he sat there more for
the purpose of acquiring information than of giving it; nor should he
have risen at this time, had not his duty compelled him to reply to some
remarks, and to oppose the amendment offered by the gentleman from New
Hampshire, (Mr. DURELL.) The gentleman wished the United States to have a
fleet; to have four forty-four gun frigates to assist in the defence of
New York. For his own part, Mr. S. wished the United States were in such
a situation as to enable them to usher into existence a fleet capable of
annihilating at one blow the whole naval power of England, which had so
long proved a scourge to all nations, and to this nation in particular.
Such a consummation was devoutly to be wished; but the attainment of
such an object by the United States, was utterly impossible: they had
not means wherewith to do it, and an attempt which should fall short of
the end, would do the nation more injury than good, by tending to swell
the already overgrown naval power of Great Britain. At present, he must
say, he was entirely opposed to a Naval Establishment, and differed
entirely with the gentleman from Massachusetts, upon the propriety of
any such establishment in the present situation of affairs; he wished
to have nothing to do with any establishment unconnected with a system
of land defence. There was a time when a Naval Establishment might
have been consistent with national policy; when a naval armament, such
as could then have been constructed, might have been instrumental, by
proper management, in maintaining the balance of naval power in Europe;
that time was, when the combined fleets of France, Spain, and Holland,
were nearly a match for the British naval force; but that time was now
elapsed; that opportunity, which might have been so advantageously
seized, was, through an unfortunate prejudice in favor of one nation and
against another, suffered to escape unheeded. They now saw the effects of
that policy; the fleets of France, Spain, and Holland, were swept from
the ocean; the British Navy retained the undisputed possession of every
sea, and it would be an extravagant undertaking in the United States
to attempt the creation of a naval force calculated to make a serious
impression upon Great Britain; they would become the mere shipwrights of
Great Britain, who would be ready to receive their ships as fast as they
could be launched. Could they erect a navy equal to that which Denmark
had possessed? Could they build and equip twenty-four sail of the line
at once? If they could do this, experience had fatally shown, that so
far from aiding in the defence of this nation, that force would soon be
turned against it; England, with a superior force, would soon convert
them into a means of offence against this nation. But it would not be
in the power of the United States, encumbered as they were by a great
national debt, and cramped in their resources by interruptions of their
trade, to provide a navy as respectable as that of Denmark was; and
surely any smaller force could not be contemplated. Let us then, said
he, apply our limited means to a mode of defence on which more reliance
may be placed; let us in the first place put our ports and harbors in
such a state of defence as will, in a great degree, prevent our feeling
the want of a navy. To effect this object, he said, they must have
recourse to gunboats. He did not conceive this means of defence to be
so trivial as the gentleman from New Hampshire (Mr. DURELL) seemed to
think them; not that they could be relied on as an efficient system of
defence by themselves; not that they were to expel the British squadron
from our shores, (though it was thought they could effect that object;)
but because, in conjunction with land batteries and fortifications, they
would ensure some safety of person and property in our seaport towns. By
judicious management, by disposition in shoal waters, so as to aid the
batteries on shore, they might be the means of preventing our cities from
being plundered and burned, and our banks and stores from being rifled of
their wealth. In this point of view, he considered them as part of a land
defence, totally unconnected with a navy; they were not to go into deep
water; the ocean was not their element; they were to remain in stations
from which they might afford the greatest assistance to our forts and
batteries, and when hard pressed or overpowered by force they could take
shelter under them. This, said Mr. S., is the great advantage they have
over heavy ships, there being no danger of their capture while we can
maintain possession of our forts.
The British have not dared to attack a single French port since, though
they had full possession of the channel and every means of attack which
their unopposed naval superiority could afford. Though they saw preparing
in those ports materials for their destruction, though they saw rising up
in them means of offence so much dreaded as to require the utmost vigor
of national exertion to provide against them, still did they stand aloof.
Had Copenhagen been defended by gunboats distributed so as to act with
the batteries, she would not have fallen so easy a prey; in fact, the
few gunboats they had did all the execution that was done to the British
shipping; for the fleet which remained in the port for its defence had
no retreat from the superior force of the enemy, but where they could be
pursued by vessels of equal size, while the gunboats ran under the forts
and continued to annoy the British ships until those forts were taken by
land. And if all the vessels which were captured had been gunboats, how
much better would it have been for the Danes; how much less heavy would
the loss of a few boats have been than that of so many large ships, so
long building and accumulating, and at such an immense expense! But in
order to show the inutility of gunboats, as well as fortifications, this
House was told the British could succeed against our towns by landing a
sufficient number of men below our forts and attacking them by land. This
is exactly, Mr. S. said, what he wished to hear; for it was conceding
at once that our gunboat and fortification defence would be too much
for them to pass, that they would be compelled to give up the idea of
carrying the place by water, and thus lose all the great advantages which
their boasted irresistible naval power could afford them.
Mr. COOK said he could have wished that the different modes of defence
should have been united, and decided upon together; but from the
disposition of gentlemen who were in favor of the gunboat system, the
House appeared to be compelled now to decide on this alone. It was well
known that he was not averse to the proposition for constructing a number
of gunboats; that he had last session given his vote in favor of them,
and was now in favor of increasing the number, believing that in some
situations they might be eminently useful; but when he found that so
large a sum had been appropriated, almost to the exclusion of any other
mode of defence, he deemed it his duty to give his vote in favor of a
proposition tending more equally to apportion the modes of defence.
It had been moved to strike out of the bill a certain number of
gunboats, and insert a certain number of ships of war. That a navy was
necessary for the protection of our commerce was the opinion of President
Washington, expressed at a time when our commerce was comparatively
small. [Mr. C. here read an extract from an address to Congress from
President Washington.] Mr. C. acknowledged that he had not experimental
knowledge on this subject; but he appealed to the candor of those
gentlemen who advocated this mode of defence, to accord to him that
liberality which he would exercise towards them. He meant to impeach the
motives of no man. He conceived that every gentleman would act according
to the dictates of his conscience, and he claimed their indulgence to do
the same.
Were the navy now to be increased to repel aggression from any foreign
power, it would be regarded as a proper measure. He was not in favor of a
large increase of our Navy; but he conceived it necessary to have a few
large ships to drive from their ports scattering ships of an enemy. He
thought himself not out of order, since the opinion of the President of
the United States on the subject of gunboats had been read, verbally to
quote his opinion on this subject. The President was in favor of large
ships; he thought it was improper that any single ship should be able to
block up a port or harbor of the United States; and that a remedy should
be provided. Mr. C. thought that no danger could arise to the liberties
of the people from an increase of the Navy; he called upon gentlemen who
supported that doctrine to quote a single instance where any nation had
lost its liberties from a navy. He did not himself consider an increase
of our Navy necessary at the present moment, but it might be necessary
at a future time; it would not, therefore, be improper now to provide
materials, that they might have them in readiness when wanted. At present
their attention should be directed solely to the defence of their
cities on the seacoast; but at any future time, when it should be made
satisfactorily to appear to this Government that the nations of Europe
were disposed to coalesce for the purpose of asserting those rights which
were dear to every maritime power, he hoped the United States would be
ready and willing to join them in maintaining the freedom of navigation.
It has been said, by some people, observed Mr. C., that we ought to lie
by on our arms and avert the event of the European contest; let them
alone, say they, let Buonaparte fight it out with them. Now this was a
doctrine to which Mr. C. could not subscribe. If there was one great
power disposed to control and domineer over the ocean, and the United
States had great property at stake, why not pay their proportion, their
footing as it were? He considered an opposite conduct pusillanimous and
unjust. They had more tons of shipping afloat, and were more largely
concerned in the freedom of the seas, than any nation on earth, one only
excepted; and should they say that they would lie by unconcerned, while
the dearest rights of nations were destroyed by any one nation! It must
be clear to every one that they should not, and yet instead of increasing
their defensive powers where they were assailable and most vulnerable, he
was hurt to hear gentlemen propose means of defence for points perfectly
unconnected with existing evils, which consisted in the harassing their
navigation, and inflicting injuries on their floating commerce.
Mr. C. did not want ships for protection of our cities; he had no fear of
their being burnt; he considered them as sufficiently protected by the
proposed fortifications and gunboats, but all the money in the Treasury
should not be applied to these subjects. The merchants of the United
States were more concerned for the defence of their property which they
had sent beyond seas than for the burning or sacking of our cities.
Some cities, it was true, had been burnt during the Revolutionary War;
but it should be recollected that the enemy then carried on a war of
extermination, and even invited the savages to burn our towns. The war
which was now feared was not a war of the same stamp; it would be merely
a war for the right of trade, and not carried on in so sanguinary a
manner.
Mr. FISK said the gentleman from Massachusetts was opposed to this
measure because it would take all the money out of the Treasury. He
should show: _First_, That it was beyond their means; and _Second_, That
it was not a measure of exigency. Would he be willing to leave our ports
and harbors unprotected, and go abroad to protect our commerce? Mr. F.
did not think that the merchants of the United States would support that
doctrine. If they did, he wished they were out of the United States.
The gentleman had told the House that his feelings had been wounded at
the deference shown to the statements of the Secretary of War, and a
few minutes after, read an extract from an English newspaper, giving
an account of a transaction which had taken place between gunboats and
English vessels. Mr. F. confessed he was not a little surprised at his
preferring the authority of English newspapers to that of the Head of a
Department in our own country. A gentleman who did this, might be allowed
to indulge in the spirit of prophecy. He had said, if they adopted this
measure, they would soon feel the effects of it. Mr. F. wished the
gentleman would show how. The gentleman had said, because a few towns
were burnt last war, the House seemed to think that the war which was
expected would be a war of extermination; but that this was to be a
harmless war, a mere war of trade. He would ask that gentleman what was
the conduct of Great Britain towards Denmark? Had they spared the town
of Copenhagen? He believed not. Would they spare the towns of New York
or Norfolk, if it were in their power to destroy them? He thought not.
Mr. F. thought the great question now was, What was the most efficient
force--what would afford the most complete protection to our ports and
harbors? The gentleman had said that they had now no force which could
contend with an eighty or ninety gun ship. If that were the case, Mr. F.
said, his argument completely recoiled upon himself. They had now eight
or ten frigates, and if these could not contend with one eighty or ninety
gun ship, they had better stop where they were, and not erect more of
such inefficient force. Let us consider the subject for a few moments,
said Mr. F. This is not an untried force; it was tried before that
gentleman had existence. The instance mentioned by the gentleman from
North Carolina, (Mr. SAWYER,) might have shown that this force would be
sufficient. It was the opinion of a most experienced naval commander, and
whose standing and information entitled him to more than ordinary credit,
that he would rather have four gunboats than a forty-four-gun frigate.
A frigate could not carry the same metal as a gunboat. If a frigate was
dismasted, becalmed, or any accident whatever happened to her, she could
not get out of the way. These reasons should have weight on the minds of
any gentleman, particularly of one who did not pretend to experimental
knowledge on this subject. If the Treasury was as low as it was said to
be, they should surely pursue the cheapest means of defence. By adopting
the mode of defence by gunboats, in preference to defence by frigates,
they would have, at the same expense, a third more in number of guns,
besides double the weight of metal. With gunboats there was no loss of
time in putting about. Not so with a frigate. She must first discharge
one side, and then go about, before she could fire the other. But,
gentlemen who were steeled against conviction, and determined, at all
events, to have a Navy, would not be influenced by argument or reason.
Had not Denmark a Navy? What became of it? It fell into the hands of a
superior naval power, and that will be the fate of our Navy if we erect
one.
Mr. THOMAS said that the gentleman on his right, his colleague, (Mr.
GARDENIER,) had told the House that he should vote to build the whole
number of gunboats, not because he thought them an efficient defence,
but because he considered them feeble machines. This reasoning might
be conclusive in the mind of that gentleman, and he did not care what
influenced him, since it appeared they should have his vote for the bill.
However, Mr. T. said he merely rose to reply to one remark of that
gentleman. He knew that it had been rung through the country, by
electioneering gentry, for these number of years, that the formidable
navy, so carefully raised by the former Administration, had been sold
off by the present one, and the nation left without defence; and that
gentleman (Mr. G.) had repeated the same story, that the formidable navy
which had been raised with so much care had been sold off, to the eternal
disgrace of the nation. Hearing this assertion, Mr. T. thought it his
duty, on that floor, to declare that not a single national ship had been
ordered to be sold since the present Administration came into power; that
not a single vessel had been sold except from orders issued previous to
the time that the administration of this Government was taken out of the
hands of those coinciding with that gentleman in political sentiment.
The amendment offered by Mr. DURELL was then negatived--ayes 19.
The bill being about to be read a third time this day, its decision was,
on motion of Mr. ELLIOT, postponed till to-morrow.
THURSDAY, December 10.
_Fortifications and Gunboats._
The bill sent from the Senate, entitled “An act to appropriate money for
the construction of an additional number of gunboats,” together with the
amendment agreed to yesterday, was read the third time.
Mr. ELLIOT.--When an humble and uninfluential individual, voluntarily
isolating himself from the several great parties that divide, distract,
and ruin our devoted and degraded country--our devoted and degraded
country--(I repeat the expression, sir, for I know it to be as consonant
to the rules of order as I shall prove it to be incontestably true;) when
such an individual rises to deliver his sentiments upon an important
subject of national concern, it would seem that the singularity of his
situation might attract attention, however deficient he may be in the
solid powers of argument, or the brilliant tones of eloquence. But these
are inauspicious times. These are not the _mollia tempora fundi_--the
soft reasons of persuasion--the calm hours of peace. They are times of
alarm and denunciation. For myself, peculiar and almost irresistible
reasons would impel me to continue silent, not only this day, but for
the short remainder of my political existence. But there are periods
when silence is almost equivalent to an abandonment of duty. Private
afflictions, as inconceivable by others as they are indescribable by
myself, were I disposed to describe them, indispose me for political
exertion. There are times, however, when even the most refined feelings
of the human heart should give place to the sublime energies of the human
mind. When imperious duty calls, the latter should be exerted, even if
it be only that the former, when the great effort is over, should resume
their empire with more exquisite sensibility.
The present is one of those great crises that rarely occur in the
annals of nations--it is, indeed, a crisis of most awful moment. Our
political day of hope and joy and peace is suddenly overcast with thick
and dark clouds. In the language of sacred oriental poetry, it is a day
of darkness and gloominess--a day of clouds and thick darkness--as the
morning spread upon the mountains.
In casting my eye over the various documents upon the table, my attention
is for the moment attracted by one which has been placed upon it this
morning--a report from the Committee on Revisal and Unfinished Business,
upon matters undetermined at the last session. In this I find mention
made of several propositions upon the subject of the defence of the
nation, which I had the honor then to propose, and which it was not
the pleasure of the House then to act upon. Propositions of a similar
character, so far as respects the fortification of the ports and harbors,
the organization and arming of the militia, and the equipment of the
frigates, it is now hinted, will be carried into effect in the course of
the present session. I am happy that my doctrines are becoming popular,
and that there is some prospect of their adoption. But it is because I
fear, and indeed believe, that the present bill is pressed upon us for
the purpose of superseding every measure of national defence which would
comport with the true interest and the honor of the nation, that I am so
decidedly opposed to it, and that I consider the Republic degraded by the
substitution of a weak and miserable policy for measures of a manly and
magnanimous character, at a crisis which peculiarly requires them.
The principal argument, although this does not seem to be openly avowed,
in favor of the present measure, is the supposed predilection of the
Executive for this system of defence. Indeed, this is but a new edition,
or rather a new volume, of the celebrated proclamation and gunboat
system, which, instead of elevating us in the scale of nations, has
greatly sunk the national character. The objects in view are to protect
the commerce of the Union to a certain extent, and to protect our coasts
and seaports. Of course this measure is to constitute a material, if
not the principal part of a general system of national defence and
protection. The object is proper and patriotic, and it is a subject
of deep regret that the means are inefficient. But history and human
experience have settled the true character of these machines, and as we
have nothing else to hope for, we can expect nothing like an energetic
and effectual system.
The President _shall_ recommend. The voice of the constitution is
imperative. It makes it the duty of the Chief Executive Magistrate to
take upon himself the responsibility of explicitly recommending to the
Legislature such measures as he deems the public welfare to require. In
making the inquiry, in what manner has this great and solemn duty been
performed at the present moment? the transition is easy to the Message
of the President at the commencement of this session. These messages,
as public documents, and addressed exclusively to the Legislature, are
certainly fair subjects of criticism; and whoever shall be impelled by
duty to speak unpleasantly of the present system of administration, will
have an abundant source of rich consolation in the reflection, that, when
gunboats are the subject of discussion, it is impossible to be out of
order. The present system begins and ends with gunboats. In the Message
to which allusion has been made, which should have been as a polar star
to guide us at this dark season, not a single measure is explicitly and
unequivocally recommended. I will read that part of it which relates to
the Naval Establishment:
“The gunboats already provided have been chiefly assigned to
New York, New Orleans, and the Chesapeake. Whether our movable
force on the water, so material in aid of the defensive works
on the land, should be augmented in this or any other form,
is left to the wisdom of the Legislature. For the purpose of
manning these vessels, in sudden attacks on our harbors, it is
a matter for consideration whether the seamen of the United
States may not justly be formed into a special militia, to be
called on for tours of duty, in defence of the harbors where
they shall happen to be; the ordinary militia of the place
furnishing that portion which may consist of landsmen.”
Here the Executive submits certain matters for consideration, without
assuming to himself the responsibility of expressly recommending them.
In relation to the Naval Establishment, he only talks of a movable force
on the water; and if we should build our flotilla of two hundred and
fifty-seven gunboats, at an expense which will be shown to be enormous,
and, in the event of a war with Great Britain, two or three British
ships of the line, and as many frigates, should come upon our coast, and
blow them all to atoms, as would infallibly be the case if they were to
come in contact with them, we shall no doubt be told that a wise and
prudent Executive never recommended such an ill-judged, degrading, and
disastrous measure. But for what purpose are gunboats to be built? To
protect commerce and the coast. Every one knows that we cannot protect
our commerce in every clime and on every sea against the naval power of
Great Britain. It would be unwise, therefore, at present, to exhaust our
resources by building a navy of ships of the line. It does not follow,
however, that nothing can be done; that we cannot support our own
jurisdiction. Nothing effectual, it is certain, can be done by gunboats.
They have never been of use but as auxiliaries to more extensive and
substantial establishments; and they have always been of so little
comparative use, as to render it impossible to ascertain the amount of
the service they have rendered. We may safely challenge their advocates
to produce a single instance in which, alone and unconnected with works
of more consequence, they have been of any essential use at all, for
purposes either of offence or defence. In my researches into their
history I have met with no instance of the kind. Here I shall advert to
a document, the reading of which has been called for by the honorable
chairman of the committee on that part of the President’s Message
relative to aggressions committed within our waters, and with which I
should not otherwise have troubled the House. I do it at this time,
because I find my voice failing so fast that I shall be unable to go so
fully into the subject as I originally contemplated. This I shall not
regret myself, and still less will the House regret it. In the message of
February 10, 1807, communicating the information requested by the House
of Representatives in relation to the utility and efficacy of gunboats,
we find, indeed, that gunboats apparently constitute but a subordinate
species of defence, and yet they are spoken of as competent to almost
all the purposes of national protection. A flotilla of no less than two
hundred is contemplated.
Annexed to the Message are the opinions of several military and naval
officers, some of them celebrated and some of them obscure. General
Gates, whose memory we all venerate, has been mentioned. He merely gives
his opinion, and furnishes no particular information upon the subject. He
is followed by General Wilkinson, the hero of the Sabine and New Orleans,
the man who violates your constitution at the point of the bayonet in
order to preserve it inviolate; the idol of popular delusion for the
moment, but the object of a very different homage from the wise and good.
Unfortunately, the letter of this great character conveys no information.
Commodore Barron says: “Ten or twelve of these boats will probably be
sufficient to compel to remove from her position a frigate, and so on in
proportion to the size and number of the enemy’s ships. To do more than
annoy would be difficult. With those vessels a great number and a long
time would be necessary to capture a ship of war; but few commanders
would feel secure while open to the attack of an enemy, which, however
inferior, he could not destroy.” This is all very candid and very strong
reasoning against the cause it is produced to support. It is matter of
regret, however, if it ever has been ascertained that gunboats have been
able to remove a ship of war from her position, that we have not been put
in possession of that information. The following remarks are taken from
the communication of Captain Tingey: “The efficacy of gunboats in the
defence of coasts, ports, and harbors, must be obvious to every person
capable of reflection; when it is considered with what celerity they
can generally change their position and mode of attack, extending it
widely to as many different directions as their number consists of, or
concentrating nearly to one line of direction. Such, indeed, is believed
to be the great utility of gunboats for defence, that, notwithstanding
the gigantic power of the British Navy, in its present state, a judicious
writer in the British Naval Chronicle, after advising a plan for raising
a fleet of 150 or 200 gunboats to assist in repelling the threatened
invasion of that country, says, ‘a gunboat has this advantage over a
battery on shore, that it can be removed at pleasure from place to
place, as occasion may require, and a few such vessels, carrying heavy
guns, would make prodigious havoc among the enemy’s flat-bottomed boats
crowded with soldiers.’” Surely we do not expect the British will come to
invade us in flat-bottomed boats. If they should do so, we may array this
miserable machinery against them, and shall probably be victorious.
But it is a popular system--the people are in favor of it--and this is an
overwhelming answer to every argument that can be urged against it.
With whom is it popular? Certainly not with the people in the Northern
States, for a very great majority of them are opposed to it. Within two
or three years we have received addresses from the Legislature of New
York and Rhode Island, passed, I believe unanimously, in both States, in
favor of an enlarged and more efficient system of naval defence. Those
two States, of course, may be considered as opposed to this project. No
one will set down Connecticut as friendly to gunboats. Is it popular
in Massachusetts? One gentleman from that State (Mr. BACON) protests
against being considered as the Representative of a people hostile to
this mode of defence. But that gentleman will not tell us that a very
large majority of his constituents are attached to the system, or that
among those who are, one in fifty has any practical or even historical
information upon the subject. Are your constituents, Mr. Speaker, in
favor of this mode of defence? I presume not. When, two or three years
ago, you opposed this establishment in its infancy, you undoubtedly
represented their sentiments and feelings, as most certainly you
supported their true interest. The Representatives from New Hampshire,
and others from the Eastern States, ask you to excuse them from accepting
their proportion of these boats, and to give them a few frigates in
exchange. You refuse their request.--They ask for frigates, and you give
them gunboats. As it respects my own constituents, I have not been able
to find any gunboat men among them. It is probable, however, that there
are some, as there may be men in that quarter, as in others, willing to
believe whatever the Executive believes; but I trust there are fewer of
these miserable minions in that district than in some others in the Union.
Mr. CROWNINSHIELD said he regretted that the present had been represented
as a local question, applicable to the South; and it had been stated that
the defence of the North was not at all in the question. Mr. C. viewed it
in a very different light. He considered the whole seaboard of the United
States, that every inhabitant on the coast, was deeply interested in the
bill now about to pass. Gunboats would as well assist to protect the
passage leading into Boston harbor, as the mouth of the Chesapeake. They
were certainly fit to aid in the protection of any of the Northern ports.
He was astonished when he heard a doubt expressed upon the subject. He
was glad to hear a gentleman from Connecticut (Mr. DANA) say he should
vote for the bill. He would rather have his vote than his speech on the
subject, as well also the vote of one of his colleagues (Mr. UPHAM) who
followed him in debate, and took the same course. Both these gentlemen
said they should vote for the bill on the table, and yet they observed
they could not approve of this mode of defence. It would thus appear
that their votes were vastly more reasonable than their arguments. He
trusted that on this bill the House would give a unanimous vote. What was
the proposition? To put our ports and harbors in some state of defence.
Was the measure embraced by this bill all the defence proposed? No;
but it was all proposed to be decided on at present, because it could
be almost immediately accomplished. And who knew when this force might
be wanted? He did not say it would be wanted to-day, to-morrow, or the
next day; but possibly the return of Spring might bring an occasion for
its service to repel an invader; and, where the risk was deemed even
probable, procrastination in preparing for the worst would be the height
of imprudence.
In regard to the utility of gunboats, gentlemen differed; and well and
honestly they might, because their use had not in this country been
sufficiently confirmed by experience. Mr. C. would, however, quote an
instance or two in which they had been eminently useful, even in our
own country. He had learnt, from a very correct source, that in the war
between Great Britain and France, in 1760, when the American colonies
took a part, there was an instance on record which proved that these
gunboats were employed with success in the river St. Lawrence--that four
gunboats, carrying one 18 pound cannon and 20 men each, did attack and
capture a brig of 16 guns and 180 men, killing 60 or 70 men in the brig,
while the gunboats lost but a single man, and received little or no other
injury. If any gentleman doubted, Mr. C. would give the respectable
authority of the Vice President of the United States for the fact. Mr.
C. had understood he was an officer actually employed by the Colonial
Government in that service. Another instance had been given to him by a
naval gentleman of eminence, who was not now in the service of the United
States, but who, he believed, if called upon, would do himself great
honor. Mr. C. then read the statement made by that gentleman, to this
effect: “In 1776, the Roebuck and Liverpool, two British frigates--one
of them mounting 44 guns on two decks--lay in the river Delaware,
below Philadelphia. A flotilla of American gunboats attacked them with
spirit. The engagement was severe, and victory terminated in favor of
the gunboats. One of the frigates (the Roebuck) was crippled and driven
on shore, and would have been taken possession of, if the ammunition
in the boats had held out. As it was, after the Roebuck floated off
into deeper water, both frigates abandoned their station, and left the
gunboats masters of the river.” It was probable that there might be
some gentleman of the Revolution near him who might have known of the
fact; if so, would it have no impression on the House? He presumed it
would have a favorable impression, as it deservedly ought. He could cite
other instances--he could say, that in the neighborhood of Gibraltar,
at Algeziras, the Spanish gunboats had in many cases attacked British
frigates, and sometimes 74-gun ships, and very much annoyed them. He knew
of no instance of their capture, because it often happened, that a new
wind springing up, carried the vessels out of the reach of their fire. It
was also believed to be a fact, that the British naval commanders in the
mouth of the Straits of Gibraltar had always been alarmed in moderate and
calm weather when they saw the gunboats of Algeziras coming out to attack
their ships of war. Engagements with them were not uncommon, and the
boats frequently had the advantage, and captured merchant vessels under
their convoy, and carried them off, in spite of all the efforts to save
them which could be made by the men of war.
Mr. SOUTHARD was in hopes this bill would have met with very little
opposition, especially when it was considered that it was but a part
of a system of defence, of which the other parts would be decided in
progression. Various objections had been made to the bill. Some gentlemen
supposed that gunboats were altogether insufficient for defence, and that
the scheme was merely ideal and visionary; and some had attempted to
prove that gunboats had never been used. A gentleman from Massachusetts
had just disproved this by circumstantial accounts of two engagements;
one on the river St. Lawrence, and one in the river Delaware. In the last
instance, about twelve gunboats engaged two British ships of war. Mr.
S. would state, from good authority, that the reason why these vessels
were not made a prize, was, that the gunboats were not supplied with a
sufficient quantity of powder and ammunition. This statement and fact
would go far to do away the impressions of those gentlemen who suppose
that gunboats are of no efficiency as a defence, or that their utility
was ideal. In the progress towards the passage of this bill, every day
new difficulties had been discovered, and new objections raised to
its passage. Some gentlemen told them if they passed this bill, and
appropriated a sum of money sufficient for the object proposed by it,
that they would not leave money in the Treasury adequate to the expense
of building land batteries, &c. Another objection was, that if they
appropriated money for building gunboats, fortifications, and batteries
for the seaports, there would be no money left wherewith to provide arms
for the militia. If these remarks were even correct, they possessed no
weight, because gunboats, fortifications, and land batteries, and arming
the militia, were but three several parts of one great system.
After these remarks, he would only state his own idea of what ought to
be done. He thought they should first provide gunboats; secondly, erect
fortifications and land batteries; thirdly, pass a law providing for
arming the militia--for, unless men were armed, they could not prevent
an enemy from landing, destroying, and laying waste the country. Mr.
S. hoped everything would be done which was requisite for protection.
Gentlemen had said that our resources were not sufficient to meet
these objects. Mr. S. would observe that there was, in the Treasury,
money sufficient to answer all these purposes; if not, the country had
resources within itself, fully adequate to every measure of protection
and defence. He would not go, as some gentlemen had, into calculations
of dollars and cents. If the nation was embroiled in war, its expense
would be incalculable. It was impossible to form even an idea of the
enormous expense that would accrue from war. But, Mr. S. would withdraw
all the money out of the Treasury; he would not leave a cent; he would
even drain the blood from his own veins, if it were necessary, for the
defence of his country. If the nation was involved in war, life, liberty,
and property, every thing, was at stake; and all their energies should be
exerted to repel the invader.
Mr. KEY said he conceived he possessed the right to give his sentiments
on this subject; and he felt it a duty to assign those reasons which
would induce him to vote for the bill under consideration.
Mr. K. had no doubt but, in forming a general system of defence, some
few frigates would be found necessary; but he strongly feared they could
neither construct line of battle ships or frigates before it would be
necessary to use them. Some gentlemen had asserted that the nation was at
war; he would not combat this position, though it was not tenable. Some
gentlemen said we were on the eve of war, with whom he thought. If they
were engaged in war, it would not be upon any other part of the frontier
than that accessible by water. Of course the most vulnerable points of
the country were upon the seashore. He therefore thought that every
species of defence competent to the protection of these points should be
adopted, and of this description were fortifications and batteries, aided
by gunboats; not that they composed the best possible means of defence,
but the best that could be constructed within a given time.
There were, as far as Mr. K. knew, in modern times, but two instances,
and but one that was remarkable, of the efficacy of gunboats as a part
of a system. One case was the defence of Cadiz, when Nelson, with his
whole fleet, anchored in the bay of Cadiz, and was repulsed, principally,
he believed, by the instrumentality, but certainly by the assistance
of gunboats. In case of attack, made on our ports, gunboats being
locomotive, would, in such circumstances, be advantageous. Another case
of the success of gunboats occurs in the bay of Gibraltar; they are there
secured from attack, until, like spiders darting upon flies, they spring
out in calm weather, and always capture their prey.
These gunboats took their origin in an early part of this century, when
Gibraltar was surprised by the enemy. Gunboats were then introduced into
the Gut of Gibraltar, and from the time that Britain captured Gibraltar,
to the present day, such has been the effect of these boats, that the
British were always obliged to send supplies and provisions to Gibraltar
under convoy. He had mentioned this circumstance, to show that gunboats
had acted offensively as well as defensively. If gentlemen, however,
considered them as alone a sufficient defence for this country, they
were most miserably mistaken; they were merely eligible as a means of
defence in aid of fortifications. Mr. K. agreed with the gentleman who
had yesterday said that these boats would be no protection against ships
of war, with wind and tide in their favor, in Chesapeake Bay; but, as
offensive weapons, they might be placed at points where they might lie
in readiness till a proper time should arrive in which they could act
with advantage. A number of frigates had been, for some time, lying in
the Chesapeake. Mr. K. did religiously believe, if the nation had been
in a state of war, (and a contrary situation alone had prevented the
experiment being made,) that twelve gunboats, stationed at Norfolk, could
have driven them away from their anchorage. And why did he believe so?
Because they could have chosen their time, when the weather was calm,
and large ships could not be worked. It was in this way that gunboats
could greatly injure ships of war, and, if not destroy them, could
injure them so much as to render them unmanageable. He did not conceive
that gunboats should be considered as incapable of rendering essential
services, because they had not hitherto driven the British squadron
out of the Chesapeake, for the measures taken by the Executive had not
warranted such a step. We are not at war, said he; when, by the shameless
impressment of our seamen and other injuries, and when consummating her
folly and wickedness by the attack on the Chesapeake, the English nation
gave cause for war, we did not go to war. In his judgment, and he was
reluctant to withhold praise where it was due, a much wiser course was
taken; he meant the call upon that Government for reparation before a
resort was had to war. Had they gone to war, on the spur of the occasion,
they would have committed to the mercy of the British navy twenty
millions of American property, afloat on the ocean; it would have fallen
a sacrifice to the superior naval force of our opponents. If honorable
reparation be made, the course which had been pursued would have been
wise; at all events, whether reparation be made or not, time had been
given to our citizens to save a great portion of their property. A
measure of immediate war would have brought bankruptcy on our cities, and
ruin on our citizens. It was well, for this reason, to put the event off
as long as possible--the longer it was put off, the better we should be
prepared for it when it did arrive.
FRIDAY, December 11.
_The Gunboat Bill._
Mr. JOHNSON said, although he should not pretend to propose measures of
great national defence, he considered it a prudent exercise of his right
as a member, to express his sentiments upon subjects proposed by others,
upon which it became his duty to vote. He was in favor of the passage
of the bill. He believed that they had arrived at a crisis; a crisis
which had marked the maritime annals of Great Britain with the blood of
American citizens; the period had arrived when this nation must receive
a satisfaction for injuries inflicted, and a security from future wrong;
or the sword must again be drawn to defend that liberty which was the
boast of all, and which had cost so much. They had before them evidence
sufficient to demonstrate the probability of war, an event which could
not be long protracted but by an honorable accommodation. While America
mourned the loss of her sons, she had wisely forborne to strike a blow
which her wrongs had justified. New instructions had been despatched
to our Minister at the Court of St. James since the outrage upon the
Chesapeake, and a last appeal made to the reason and justice of that
Government by whom they had been so much injured. The negotiation had
terminated in England, and even now a special Minister was expected from
Great Britain to attempt a settlement here. The door to reconciliation
had not been closed, and he hoped it would not be barred so long as
a real desire could be traced in Great Britain to make an honorable
settlement of all important differences. But every thing they could hear
or see proved the propriety of making preparations for the worst event.
Our Government had been the injured party, and must have redress.
The conduct of the Administration had been arraigned. Mr. J. did not
hesitate to approve the conduct of the Executive, and particularly in
this late and important transaction, it had acted with prudence, wisdom,
and firmness. If feeling had not been governed by prudence, the nation
might have been in a state of actual war. Perhaps our wrongs might have
justified it; but while there remained a hope for honorable peace,
negotiation was the proper course. We fear no nation, but let the time
for shedding human blood be protracted, when consistent with our safety.
If our claims upon the justice of England should be disregarded, there
would be time enough for human butchery. He looked around him, and saw
many who had witnessed the calamities and miseries of the American
Revolution. But if war could not be avoided, accumulated horrors would
not induce the American people to endanger their independence. They would
say, like the immortal WASHINGTON, the former victorious leader of their
armies, “I will conquer or die with my countrymen.” Unanimity, in times
of public exigency, was all-important; any other course than that which
had been pursued by the Administration, might and would have created
division; but if they should now be driven into war by the injustice of
Great Britain, where was the man who would not be with them, who would
not approve the conduct of the Administration, pronounce our cause just,
and appeal to Heaven for victory.
As to the system of gunboats, which had involved such a wide range
of discussion, and almost every national topic, he had no practical
knowledge of their utility; but he could state the evidence he had of
their utility to the full extent contended for. First, it was a system
which had been recommended by the President, supported by the opinions of
General Gates, Commodore Barron and Captain Tingey. He perceived that a
very large majority of the Representatives of the seacoast, from Georgia
to Maine, was in their favor. They are used by most of the powers of
Europe, and particularly in the Mediterranean, for defence, and often for
offence. They were considered particularly useful in the North of Europe
and the Baltic, on account of moderate tides, shallow water, and narrow
seas. He had also many examples of their practical utility. In the war
between France and England and her colonies, a case had been cited of an
attack and conflict in the river St. Lawrence, in the year 1763, between
four American gunboats and a French vessel of war, carrying 16 guns and
180 men. The battle was obstinate; the French lost 60 or 70 men, the hull
and rigging of the vessel were cut to pieces, while only one man was
killed on board the gunboats. A battle had been mentioned by the same
member, which happened in the Delaware during the Revolution, where two
English frigates were attacked by gunboats, one of the frigates driven
from our waters, and the other stranded, and would have been captured but
for the want of powder. Again: the celebrated battle between the English
navy and the French flotilla of gunboats off the port of Boulogne, in
the British Channel. Lord Nelson was charged with the destruction of
these gunboats, and made the attack for that express purpose. The first
attack was made with thirty vessels of war of all sizes; he failed in the
enterprise, and was obliged to retire. This great naval commander, not
having satisfied himself or his nation by this attempt, ten days after
returned to the assault, with more ships of the line, a larger number of
frigates and brigs, and renewed the fight; after a very bloody battle and
great loss, he was again repulsed. In fact, nothing did the English so
much fear as these gunboats, properly managed. A few years ago, it would
be recollected, Napoleon collected above one hundred thousand soldiers
for the purpose of invading England. This created alarm and agitation in
Great Britain, and this project the British Cabinet knew could not be
effected without the aid of the French flotilla of gunboats at the port
of Boulogne. The late Minister, Mr. Pitt, to divert the attention of
Napoleon from this design, by British gold and British influence, created
a new coalition upon the continent of Europe against France. For the
moment, this coalition had its desired effect, and it is known to all how
it had terminated. It had resulted in the conquest of the North, cost the
lives of thousands, and inundated Europe with human blood.
Mr. MACON said it appeared to him that the only question at present
discussed was, whether the number of boats authorized by this bill was
the proper number. Some cases had been stated in which gunboats had been
efficacious, and some in which they had not. Mr. M. did not mean to
dispute their efficacy, but as gentlemen on the seacoast were divided on
the subject, until gentlemen could better agree as to number and utility,
so large a number ought not to be built.
There was another thing he should have been glad to have seen before
he voted on this bill; he should have wished to have seen how these
boats were to be manned. They might be told that people would volunteer
their services on board of these boats. There must be some way in which
they must be manned; unmanned, they would be perfectly useless. He
did not like legislating in this detached way; it had been tried in
former days; first passing one law, they must pass another to render it
effectual. He wished to see some efficient method in which these boats
should be manned; he could have wished that the whole system should go
hand in hand. The President was authorized to man these boats. Was any
authority given to draught sailors for the purpose, or how were they to
be supplied? It was essential that this should be known. He should wish,
and if he thought he could succeed he would make a motion to recommit
the bill to a select committee for the purpose of making this provision.
Suppose twenty boats were stationed at Norfolk, did they know that
these boats could be manned? In his opinion, the bill should contain a
regulation for manning them; every law should stand upon its own merits,
and he should always protest against passing one law which would oblige
them to pass another to carry it into effect. Let us, said he, see the
whole system, and then let us vote upon it.
Mr. G. W. CAMPBELL said it had not been his intention to speak on this
subject. There was sufficient cause to induce him still to decline
entering into the debate. His indisposition would certainly prevent him
from examining the subject in that manner which its importance required;
and he would therefore have persevered in his original intention of
remaining silent, had not an attempt been made to make an impression on
the public mind, that the friends of this measure were about to drain
the Treasury of the United States for a system of defence that would
prove inefficient--for a mere useless experiment. This might therefore
require some explanation, that the motives of gentlemen who were about
to vote for this system of defence should be known, as well as their
objects. In the discussion of this subject, gentlemen had also gone
into an examination of the utility of our Naval Establishment, and the
expediency of increasing it at this time, which was in his opinion a
distinct subject, that had little or no connection with the proposed
measure. It would be time sufficient to examine that question when it
came properly before the House. There had also been a very novel mode of
argument introduced on this occasion, and it was the second time it had
been used during the present session--that of gentlemen arguing against
the expediency of a measure, while they declared their intention to vote
for it. This was indeed a new method of legislating, and may be intended
to answer a double purpose: it may perhaps enable gentlemen to say to
those of their constituents opposed to this measure, (if such there are,)
We were inimical to it; we exposed its weakness in the House, and showed
its inefficiency--you cannot therefore blame us for its adoption. While,
on the other hand, they might say to the friends of the measure, We have
supported it by our votes, and are therefore entitled to your confidence
on that ground. Mr. C. did not say that this was the object of gentlemen;
but if it was not, it appeared to him difficult to ascertain what it
could be. It would have appeared much more consistent for those gentlemen
who seriously believed the system to be useless, to vote as well as speak
against it; and it were to be wished that those who intended to vote for
the bill before the House, had permitted it to pass without opposing
it; but, as this course of argument had been pursued, he deemed it a
duty he owed to his country, to those he had the honor to represent,
and to himself, to express to the House (though in a very brief manner)
some of the reasons which would induce him to vote for the bill. He did
not pretend to possess much information on the subject of gunboats--he
had therefore hitherto declined entering into the discussion, and
waited to hear what might be advanced on the subject by those who had
greater opportunities than himself of knowing their efficiency or
inefficiency--but he had found those who had spoken on this subject were
obliged, like himself, to depend on the information of others, and did
not pretend to furnish the House with any practical knowledge on this
subject. They must, therefore, form their opinions from the reasoning on
the case, and such evidence as they were possessed of.
The first important inquiry would seem to be, whether the present state
of our relations with foreign powers was such as required the adoption of
effective measures for national defence. It appeared to be agreed by all
that it was. No one denied the importance of the present crisis. It could
not be denied by any gentleman who would reflect a moment on the repeated
aggressions that have been committed on our commerce, the violated
rights of our seamen, the insult offered to our national flag, and the
murder of our fellow-citizens. These all go to prove, incontestable,
the necessity of our putting the nation in a state of defence. The next
inquiry was, of what nature ought our defensive preparations to be? It is
clear, they ought to be calculated to meet and repel the attacks that we
have a right to expect from those who are likely to become our enemies.
Those attacks are to be expected on our coasts and seaport towns which
are most exposed, and most vulnerable to a marauding enemy. The species
of defence, therefore, that we ought to adopt, should certainly be such
as was calculated to protect, as far as in our power, our coast, our
harbors, and our seaport towns, from insult and ruin; unless, indeed,
these are to be abandoned to the enemy on his first approach. We are then
to determine whether we shall defend these or not.
Will the nation consent to expose to an enemy, without an effort to
repel him until he has landed, the whole extent of your seacoast, all
your seaport towns on the margin of the ocean? This would be a dangerous
experiment, and he had supposed too wild a scheme to be advocated by
any reflecting politician: though it seemed to be the favorite doctrine
of some gentlemen in this House, who were opposed to every species of
defence, except placing arms in the hands of the militia. It is true the
foe might be repelled by your militia, and no doubt would be; but, what
would the citizens of those towns and on your seacoast say? Would they
not justly complain that you had neglected their interest, had deserted
them in the day of danger, and left them to be pillaged and destroyed by
an enemy, without one effort to protect them? They certainly would, and
their complaints would be well founded. There were, however, he presumed,
but very few willing to subscribe to this doctrine--though it had been
advocated by some gentlemen in this House, who appeared opposed not only
to ships of war and gunboats, but also to fortifications.
Taking it then as admitted, that the coast and seaport towns are to be
defended against naval attacks, what were the means in their power best
calculated to effect that object? On this point there was, as might
be expected, some difference of opinion. Mr. C. believed it would not
be contended by any gentleman that our coast and seaport towns could
be effectually defended by fortifications alone. No man was so wild
in his plans as to say so. The whole coast, from Maine to the Gulf of
Mexico, cannot be fortified--some other mode of defence must therefore
be resorted to. He apprehended also, it would not be contended that the
naval force now in our possession, in addition to fortifications, was
sufficient to afford effectual protection to our seaports. This had
not been pretended; its inefficiency was too well known for a single
individual to rely upon it. There was then no question on the point that
they must acquire an additional floating force in aid of fortifications.
What kind of addition was it in their power to make? There was but one
alternative left them--either to build an additional number of ships of
war sufficient for that object, or to resort to the system of gunboats.
They had been very earnestly called upon by some gentlemen to make an
addition to the navy and unite this with gunboats. This would probably be
found impracticable at the present crisis. Mr. C. had expected that those
gentlemen who wished to have reduced the number of gunboats proposed,
and substitute a few frigates in their place, would have shown the
practicability of building their frigates in sufficient time to answer
the present exigency. If this could not be effected, the proposition was
useless. Mr. C. said the building of a large navy was not consistent with
the policy or interest of this country. If it were in their power to do
so, it would be at war with the genius of their Government, the interests
of the people, and the security of their liberties.
Mr. QUINCY said he would not have risen now, but for an observation of
the gentleman from Tennessee, as to speculative opinions. Mr. Q. had
before not expressed his own opinion merely, but the opinion of men
deeply interested and much experienced in this question. He could not
boast of personal experience on the subject, but he had conversed with
merchants and persons in naval employ, and he had found but one sentiment
existed, that they might be useful, but not so much as to supersede
the necessity of other modes. He recollected an observation made by a
merchant deeply interested in the defence of our ports. When his opinion
was asked of the efficiency of gunboats, he said, “you may have gunboats;
but attempt to use them on our coasts, and you would soon not have a gun
left on your boats.” Much better would it be that these guns should be
rested on carriages, and those distributed along the sea coasts. He had
no objection to gunboats when contemplated to be used in shoal and narrow
waters; but he must express an opinion against their efficiency in deep
and rough waters, not from his own experience, but because it appeared
to be the opinion of men skilled in naval affairs; and because the great
mass of men interested in the defence of the ports were averse to this
mode of defence. He should not vote for the bill, because he should, by
so doing, abandon the best interests of the country; and because, when so
large a sum was appropriated, it would seem that land batteries were to
be proportionably neglected.
Mr. RANDOLPH said that so long as the details of the bill were under
consideration, he had forborne to trouble the House with his sentiments,
but now, on its final passage, he conceived himself entitled to express
freely and fully his objections to it. His object was not to make
proselytes, but to present to the House and to his country the grounds
of his refusal to sanction the measure. When perhaps seventy or eighty
speakers had repeatedly risen in its favor, it was surely reasonable that
the few individuals opposed to it should be heard in their own behalf.
He complained of the manner in which business had been conducted. Instead
of a comprehensive system, the whole extent of which might be embraced by
the House, measures had been laid before them piecemeal, and discussions
of the most vague and unprofitable nature had grown out of them. So
far from that general diffusion of information which was so desirable,
they were totally destitute of any concerning the disjointed members
which had been laid upon their table, and which he despaired ever seeing
connected in one perfect whole. The deliberations which had arisen upon
them defied analysis. It was a sort of Parthian warfare, in which the
difficulty lay not in vanquishing the enemy, but in coming up with him.
He had not proceeded (as was alleged) upon his own speculative opinion.
Experiment had proved the inadequacy of this species of armament. When
the President of the United States issued his proclamation, commanding
the British ships of war to retire from our waters, the want of adequate
force alone could justify a failure to carry that proclamation into
effect. A consciousness of his incapacity to enforce obedience to it,
was notoriously one of the causes why Congress had been convened.
Whosoever denied this must have the hardihood to charge the President
with being deficient in his duty, which he presumed gentlemen were not
prepared to do; and surely it was his bounden duty to enforce respect
for the authority of the nation on those by whom it had been treated
with derision and contempt. The British force remaining within our
jurisdiction, in defiance of the laws, were as much an invading foe as if
they had taken possession of the Capitol. The miseries of war had been
feelingly depicted.
Mr. R. was as strong an advocate for peace as any gentleman on that
floor; provided it were a safe and honorable peace. To his apprehension
the arguments which had been urged would justify submission to any
extent. He would ask if it was the duty of the Chesapeake to submit for
the sake of peace, or to have resisted to the utmost of her strength?
She was no more called upon by her duty to resist that attack, than
the nation was now called upon to repel the attack which had been made
upon her sovereignty. The obligation to resist was in both cases the
same. Was any person disposed to applaud as a preserver of peace the
unfortunate man of whom he should say no more than that he was not
more bound to return the broadside of the enemy than Government were
to expel their ships from our harbors after commanding them to depart.
Much as he cherished peace, Mr. R. would be sorry to see it preserved by
such forbearance; and it was only the inability to execute that could
reconcile it for a moment to the feelings of the nation. The proclamation
ought not to have been issued, or it should have been enforced. Let it
not be supposed that he was an advocate for defence by forty-four gun
frigates. Since the existence of their navy the United States had lost
two of their stoutest ships to an enemy, and in both instances without
even a show of resistance. It was true that in one of these instances,
the victor, as if in contempt, had thrown the worthless thing back upon
our hands, instead of sending it where he wished it had gone--to Halifax,
or to the bottom. An attempt to build a navy at this time would bring
not relief but suffering. Mr. R. put little confidence in the regular
navy, as it was called, which just sufficed to bait the war-trap, or
in the gunboats. Like the contemptible insects to which they had been
compared by their advocates, it was hoped that they would find shelter in
their insignificance, but if they should prove instruments of annoyance,
eventually they would be turned against ourselves. He wished to see
the public treasure employed in putting arms into the hands of all who
were capable of bearing them, and in providing heavy artillery, not in
the erection of a naval force, which, whether great or small, unless
it too could retreat beyond the mountains, must fall into the hands of
the enemy. If they wanted a force that should combine strength with
simplicity, ready at all times for the public protection, they had such a
force amply in their power.
The question was put on the passage of the bill, and decided in the
affirmative--yeas 111, nays 19.
MONDAY, December 14.
DANIEL CLARK, the Delegate from the Territory of Orleans, appeared,
produced his credentials, was qualified, and took his seat in the House.
FRIDAY, December 18.
_Embargo._
The following is the Message from the PRESIDENT OF THE UNITED STATES:
_To the Senate and House of Representatives of the United
States_:
The communications now made, showing the great and increasing
dangers with which our vessels, our seamen, and merchandise,
are threatened, on the high seas and elsewhere, from the
belligerent powers of Europe, and it being of the greatest
importance to keep in safety these essential resources, I deem
it my duty to recommend the subject to the consideration of
Congress, who will doubtless perceive all the advantage which
may be expected from an inhibition of the departure of our
vessels from the ports of the United States.
Their wisdom will also see the necessity of making every
preparation for whatever events may grow out of the present
crisis.
I ask a return of the letters of Messrs. Armstrong and
Champagny, which it would be improper to make public.
TH. JEFFERSON.
* * * * *
_Extract of a Letter from the Grand Judge, Minister of Justice,
to the Imperial Attorney-General for the Council of Prizes._
PARIS, September 18, 1807.
SIR: I have submitted to his Majesty, the Emperor and King, the
doubts raised by his Excellency, the Minister of Marine and
Colonies, on the extent of certain dispositions of the imperial
decree of the 21st of November, 1806, which has declared the
British Isles in a state of blockade.
The following are his Majesty’s intentions on the points in
question:
1. May vessels of war, by virtue of the imperial decree of the
21st of November last, seize on board neutral vessels, either
English property, or even all merchandise proceeding from the
English manufactures or territory?
ANSWER.--His Majesty has intimated that, as he did not think
proper to express any exception in his decree, there is no
ground for making any in its execution in relation to any
whomsoever, (_à l’égard de qui que ce peut être_.) His Majesty
has postponed a decision on the question, whether armed French
vessels ought to capture neutral vessels bound to or from
England, even when they have no English merchandise on board.
REGNIER.
The Message, and documents accompanying it, were severally read.
_Ordered_, That the letters referred to in said Message be returned to
the President of the United States, agreeably to his request.
On motion of Mr. RANDOLPH, that the House do come to the following
resolution:
_Resolved_, That an embargo be laid on all shipping, the
property of citizens of the United States, now in port, or
which shall hereafter arrive:
And the question being put, that the House do agree to the said
resolution, and, upon the question thereupon, the yeas and nays being
demanded by one-fifth of the members present, and debate arising, a
motion was made by Mr. MACON, that the resolution do lie on the table;
and it was resolved in the affirmative.
A message from the Senate, by Mr. OTIS, their Secretary:
_Mr. Speaker_: The Senate have, in confidence, directed me to inform this
honorable House that they have passed a bill, entitled “An act laying an
embargo on all ships and vessels in the ports and harbors of the United
States,” in which bill they desire the concurrence of this House.
The said bill was received, read the third time, and committed to a
Committee of the Whole on the state of the Union on this day.
On motion of Mr. CROWNINSHIELD,
_Resolved_, That this House will immediately resolve itself into a
Committee of the Whole on the said bill.
The House accordingly resolved itself into the said committee; and, after
some time spent therein, the SPEAKER resumed the chair, and Mr. MASTERS
reported that the committee had had the said bill under consideration,
but not having time to go through the same, had directed him to ask for
leave to sit again.
_Resolved_, That this House will, to-morrow, again resolve itself into a
Committee of the Whole on the bill, entitled “An act laying an embargo
on all ships and vessels in the ports and harbors of the United States.”
And then the House adjourned.
MONDAY, December 21.
The House met but transacted no legislative business.
_The Embargo Act._
In secret session, the House again resolved itself into a Committee of
the Whole on the bill from the Senate, entitled “An act laying an embargo
on all ships and vessels in the ports and harbors of the United States;”
and, after some time spent therein, rose, and reported the bill, with
several amendments; which were twice read, and, on the question severally
put thereupon, agreed to by the House.
A motion being made, by Mr. CROWNINSHIELD, to amend the amendment
reported by the Committee of the Whole, by striking out the words
“letters of marque excepted,” and the word “retained,” in the tenth
line of the amendment, and insert the word “relanded;” and the word
“retained,” in the twelfth line, and insert the word “relanded:”
Whereupon, it was resolved in the affirmative.
_Ordered_, That the said bill, with the amendments, be read a third time
this day: Whereupon, the question was stated, that the bill sent from the
Senate, “An act laying an embargo on all ships and vessels in the ports
and harbors of the United States,” together with the amendments agreed
to, do pass.
Whereupon, the question was stated that the said bill, with the
amendments, do pass: it was resolved in the affirmative--yeas 82, nays
44, as follows:
YEAS.--Lemuel J. Alston, Willis Alston, jr., Ezekiel Bacon,
David Bard, Joseph Barker, Burwell Bassett, John Blake, jr.,
Thomas Blount, John Boyle, Robert Brown, William A. Burwell,
William Butler, Joseph Calhoun, George W. Campbell, Peter
Carlton, John Chandler, Matthew Clay, John Clopton, Orchard
Cook, Jacob Crowninshield, Richard Cutts, John Dawson, Josiah
Deane, Joseph Desha, Daniel M. Durell, William Findlay, James
Fisk, Meshack Franklin, Francis Gardner, Peterson Goodwyn,
Isaiah L. Green, John Heister, William Helms, David Holmes,
Benjamin Howard, Daniel Ilsley, Richard M. Johnson, Walter
Jones, Thomas Kenan, Nehemiah Knight, John Lambert, John Love,
Robert Marion, William McCreery, John Montgomery, Nicholas R.
Moore. Thomas Moore, Jeremiah Morrow, John Morrow, Gurdon S.
Mumford, Roger Nelson, Thomas Newbold, Thomas Newton, Wilson
C. Nicholas, John Porter, John Pugh, John Rea of Pennsylvania,
John Rhea of Tennessee, Jacob Richards, Matthias Richards,
Samuel Riker, Lemuel Sawyer, Ebenezer Seaver, James Sloan, John
Smilie, Jedediah K. Smith, Henry Southard, Clement Storer,
Peter Swart, John Taylor, David Thomas, Abram Trigg, George M.
Troup, James I. Van Allen, Philip Van Cortlandt, Jesse Wharton,
Robert Whitehill, Isaac Wilbour, Marmaduke Williams, Alexander
Wilson, Richard Wynn, and James Witherell.
NAYS.--Evan Alexander, William W. Bibb, William Blackledge,
John Campbell, Epaphroditus Champion, Martin Chittenden,
Howell Cobb, John Culpepper, Samuel W. Dana, John Davenport,
jr., James Elliot, William Ely, Barent Gardenier, James M.
Garnett, Charles Goldsborough, Edwin Gray, John Harris, William
Hoge, James Holland, Robert Jenkins, James Kelly, Philip B.
Key, William Kirkpatrick, Joseph Lewis, jr., Edward St. Loe
Livermore, Matthew Lyon, Josiah Masters, William Milnor,
Jonathan O. Mosely, Timothy Pitkin, jr., Josiah Quincy, John
Randolph, John Rowan, John Russell, Dennis Smelt, Samuel Smith,
Richard Stanford, William Stedman, Lewis B. Sturges, Samuel
Taggart, Benjamin Tallmadge, Jabez Upham, Archibald Van Horn,
and Killian K. Van Rensselaer.
_Ordered_, That the Clerk of this House do carry the said bill, as
amended, to the Senate, and desire their concurrence.
The bill is as follows:
An Act laying an embargo on all ships and vessels in the ports
and harbors of the United States.
_Be it enacted, by the Senate and House of Representatives of
the United States of America, in Congress assembled_, That
an embargo be and hereby is laid on all ships and vessels in
the ports and places within the limits or jurisdiction of the
United States, cleared or not cleared, bound to any foreign
port or place; and that no clearance be furnished to any ship
or vessel bound to such foreign port or place, except vessels
under the immediate direction of the President of the United
States; and that the President be authorized to give such
instructions to the officers of the revenue, and of the navy
and revenue cutters of the United States, as shall appear best
adapted for carrying the same into full effect: _Provided_,
That nothing herein contained shall be construed to prevent the
departure of any foreign ship or vessel, either in ballast,
or with the goods, wares, and merchandise, on board of such
foreign ship or vessel, when notified of this act.
SEC. 2. _And be it further enacted_, That during the
continuance of this act, no registered or sea-letter vessel,
having on board goods, wares, and merchandise, shall be allowed
to depart from one port of the United States to another within
the same, unless the master, owner, consignee, or factor of
such vessel, shall first give bond with one or more sureties
to the collector of the district from which she is bound
to depart, in a sum of double the value of the vessel and
cargo; that the said goods, wares, and merchandise shall be
relanded in some port of the United States, dangers of the seas
excepted; which bond, and also a certificate from the collector
where the same may be relanded, shall, by the collectors
respectively, be transmitted to the Secretary of the Treasury.
All armed vessels possessing public commissions from any
foreign power are not to be considered as liable to the embargo
laid by this act.
TUESDAY, December 22.
_Importation of Slaves._
Mr. MARION presented the petition of sundry merchants and others, in
Charleston, South Carolina, stating that many vessels had cleared out
from thence for the purpose of importing slaves, before the law was
passed by Congress prohibiting the importation of slaves, and some had
cleared out immediately after the passing of the law, and had been
detained by accidents beyond the time limited by law; and praying that a
law may be passed affording them relief.
The question being put on a motion made by Mr. MARION for a reference of
this petition to the Committee of Commerce and Manufactures--
Mr. MASTERS said if there was any subject in favor of which a petition
should not be referred, it was the slave trade. These petitioners knew
when the prohibitory law would go into operation, and they were not
entitled to relief by the laws of God or man.
The motion for reference was negatived--yeas 37, nays 39.
THURSDAY, December 31.
_General Wilkinson._
Mr. RANDOLPH then rose for the purpose of making a motion, and giving
information to the House which he had just received. This was a
duty which he owed, not only to himself, but to the enlightened and
independent freeholders who gave him a seat on this floor, and to the
country at large. Within a few days, information had been put into his
possession, of a nature and on a subject which he deemed it proper for
the constituted authority to inquire into. Had this information come
earlier into his possession, he should not till now have delayed giving
it publicity. He would first state certain facts, and those facts would
be the ground of his motion, on which he should offer no argument. Mr. R.
then read the following documents:
[TRANSLATION.]
NEW ORLEANS, January 20, 1796.
In the galley the Victoria, Bernardo Molina, Patron, there have
been sent to Don Vincent Folch nine thousand six hundred and
forty dollars; which sum, without making the least use of it,
you will hold at my disposal, to deliver it at the moment that
an order may be presented to you by the American General, Don
James Wilkinson. God preserve you many years.
The BARON DE CARONDELET.
To Señor Don TOMAS PORTELL.
* * * * *
I certify that the foregoing is a copy of its original to which
I refer.
TOMAS PORTELL.
NEW MADRID, June 27, 1796.
* * * * *
FORT WASHINGTON, Sept. 22, 1796.
Ill health and many pressing engagements must be my apology for
a short letter. I must refer you to my letter to the Baron for
several particulars, and for a detail of my perils and abuses.
I must beg leave to refer you to our friend Power, whom I find
of youthful enterprise and fidelity. He certainly deserves well
of the Court, and I don’t doubt but he will be rewarded.
What political crisis is the present! and how deeply
interesting in its probable results, in all its tendencies! …
and thereby must hope it may not be carried into execution.
If it is, an entire reform in the police and military
establishments of Louisiana will be found immediately
indispensable to the security of the Mexican provinces. I beg
you to write me fully on this question in cipher by Power,
whose presence in Philadelphia is necessary, as well to clear
his own character, attacked by Wayne, as to support the fact
of the outrage recently offered to the Spanish Crown in his
person, and to bring me either the person or the deposition of
a man now under your command, who had been suborned by Wayne
to bear false witness against me, and afterwards, for fear he
should recant, bribed him to leave Kentucky. Power will give
you the perfect of this infamous transaction, and I conjure
you by all the ties of friendship and of policy to assist him
on this occasion. If Spain does not resent the outrage offered
to Power in the face of all Kentucky … My letter to the Baron
will explain the motives which carry me to Philadelphia: from
thence I will write again to you. Power will explain to you
circumstances which justify the belief of the _great treachery
that has been practised with respect to the money lately sent
me_. For the love of God and friendship, enjoin great secrecy
and caution in all our concerns. _Never suffer my name to be
written or spoken._ The SUSPICION OF WASHINGTON IS WIDE AWAKE.
Beware of Bradford, the Fort Pitt refugee--he seeks to make
peace--there are spies every where. We have a report here that
you are appointed Governor of Louisiana. God grant it, as I
presume the Baron will be promoted. I am your affectionate
friend.
W.
Copy of a letter in cipher received from General Wilkinson.
Natchez, February 6, 1797.
MANUEL GAYOSO DE LEMOS.
In a separate paper, he says what follows:
This will be delivered to you by Noland, who, you know, is a
child of my own raising--true to his profession and firm in
his attachments to Spain. I consider him a powerful instrument
in your hands, should occasion offer--I will answer for his
conduct. I am deeply interested in whatsoever concerns him, and
I confidently recommend him to your warmest protection. I am,
evidently, your affectionate
WILKINSON.
A copy.
MAN. GAYOSO DE LEMOS.
N. B.--Don Gayoso was then Governor of Natchez, and the same
year was made Governor of Louisiana.
Mr. RANDOLPH stated the following to be an extract of a letter signed “T.
Power,” whose handwriting, he said, could be identified:
“On the 27th of the same month [October last] appeared in the
Richmond Enquirer a certificate given by myself to General
Wilkinson in New Orleans on the 16th of May preceding.
Immediately on my getting sight of this piece, which was the
same or the next day, I addressed a note to his Excellency
General Wilkinson, [No. 3.] Of this I did not keep a copy,
and therefore dare not vouch that it is an exact literal
transcript of the original; but I will be bold to say that
it is nearly (or, to make use of the General’s own language,
_substantially_) the same.
“Between my repeated declarations to many of my friends
and acquaintances (I must say it with a blush) and this
certificate, there is a manifest contradiction. And between
this same certificate and the deductions to be drawn from my
declaration before the Richmond Court, there is an apparent
inconsistency, which it is now my task to clear up and
reconcile.
“During General Wilkinson’s residence in New Orleans, last
winter, I used occasionally to visit him. A few days before he
left New Orleans, I waited upon him one morning, and after
some conversation on certain transactions that had taken place
at a former period in the Western country, and on the delicate
situation in which his conduct during the winter was likely to
place him, he asked me if I had any objection to give him a
certificate that might help him to silence that foul-mouthed
Bradford, and refute the assertions of the editor of the
Western World. I replied without hesitation that I had none,
and would give him one with pleasure, provided he promised me
it should not be published. On this he assured me that the
only use he proposed to make of it was to lay it before the
President, with the view to prove the falsehood of the charges
circulated against him, vindicate his character, and secure
the confidence of the Executive. This, if not exactly, is
_substantially_ what the General said. He then desired me to
sit down and write the certificate. I observed that I might
not make it out entirely to his satisfaction; and that, as he
best knew the points he wished should be embraced in it, he
had better make it out himself, and I would copy it. To this
he agreed. Next morning, I waited on his Excellency, and he
presented me the certificate, which I copied, as it has been
published, with a few alterations. One--a very material one--is
that, after these words: ‘Do most solemnly declare that I have
at no time carried or delivered to Gen. James Wilkinson’--I
erased the words, ‘either directly or indirectly,’ and declared
to the General I could not insert those words. He did not
insist, and contented himself with saying that he wished me to
insert them if my conscience would allow it, but not otherwise.
This is ingenuously exactly what passed between the General and
myself at that time.
“Now let me with the same frankness and ingenuousness, without
referring to any preceding or subsequent event, narrate
the transaction of 1796, alluded to in my certificate, and
concerning which I offered to give testimony in the federal
circuit court in Richmond. It is the same that is the subject
of the affidavits of Messrs. Derbigny and Mercier. That of the
former gentleman is correct as to substance, for I actually
did receive from Captain Don Thomas Portell, commandant of
New Madrid, the sum of $9,640 for General Wilkinson, towards
the latter end of June or beginning of July, 1796, which was
packed up in the manner described by Mr. Derbigny, and when
I was stopped and my boat searched on the Ohio by Lieutenant
Steele, under the orders of General Anthony Wayne, I had other
sums on board, but this was the only one I had received for
General Wilkinson. On my arrival at Louisville, determined not
to expose myself a second time to military insult, and fearful
of being overtaken by Steele on his return, and of being again
overhauled, I landed my cargo, purchased a horse, and proceeded
by land to Cincinnati. As I passed through Lexington, I
published in Stewart’s Kentucky Herald my affidavit concerning
this outrage, supported by those of the spectators of the
transaction, Welsh, White, and Sansom; preceded by a few
strictures on this military piracy, signed Impartial. And I
now take this opportunity of clearing General Wilkinson of the
charge of being the author of it, as is asserted by Bradford,
of New Orleans, and declare it was written by myself, and that
excepting Captain Campbell Smith, no person ever saw it before
it was put into the hands of the printer.
“At Cincinnati I acquainted General W. with the circumstances
that had occurred, and he gave me orders to deliver the money
to Mr. Philip Nolan. These orders I punctually executed. Mr.
Nolan conveyed the barrels of sugar and coffee that contained
the dollars to Frankfort in a wagon. I there saw them opened in
Mr. Montgomery Brown’s store. The sugar and coffee I afterwards
sold to Mr. Abijah Hunt, of Cincinnati.
“I shall take no notice of Mr. McDonough’s affidavit. It does
not refer to any thing alluded to in my certificate. That
part of mine that has reference to my mission to Kentucky and
Detroit in 1797, I shall also pass over in silence, as it has
no connection with the present subject.
“I will now endeavor, in a few words, to reconcile what may
appear contradictory and inconsistent in my certificate, and
the declaration I have just laid before you.
“Was I base and dishonorable enough to descend to
tergiversation, captious logic, and sophistical evasion, I
could maintain that this contradiction does not exist, and
that I never did carry or deliver to General Wilkinson any
cash, bills or property of any species. It is true I delivered
a certain sum of money, by his order, to Mr. Nolan; but
Philip Nolan is not James Wilkinson; _ergo_, I may with a
safe conscience swear that I never delivered James Wilkinson
any money, &c., but I scorn to make use of any such pitiful,
contemptible and degrading mode of defence, and will allow for
a moment that I did deliver to General Wilkinson the money in
question. It is generally admitted that in politics morality
is not to be measured by the same narrow scale as that which
ought to regulate the moral conduct of men in their private
concerns. The rigid stoic would, on a long run, make but a
bungling politician; and the most austere moralist, if he has
his country’s interest at heart, and is acting in a public
capacity, would not hesitate to do that which, as a private
man, and in private concerns, he would shrink and recede from
with horror and trembling precipitation.
“Let us now for a while suppose that I was a secret agent
of the Spanish Government, and that General Wilkinson was a
pensioner of said Government, or had received certain sums for
co-operation with and promoting its views, and that those views
and projects were inimical to that of the United States, should
I be worthy of the trust reposed in me by my Government, were I
to refuse to give General W. any document that might contribute
to raise him in the good opinion of the Administration of his
country, blazon his integrity and patriotism, and fortify him
in their confidence, and by their means enlarge his power of
injuring them and serving us? Surely not; or if I did, I should
deserve to be hooted at as an idiot.”
Mr. RANDOLPH then said it would be waste of time to comment on what he
had read, but he conceived it his duty to tell the House that he had
good cause to believe that there was a member of this body who had it
in his power, if the authority of the House were exercised upon him,
if he were coerced, to give the House much more full, important, and
damning evidence than that which had already appeared. He alluded to
the gentleman from the Territory of Orleans, (Mr. CLARK,) whom he had
now the pleasure to see in his seat. If the United States were in the
critical situation which had been so often represented, and in which all
considered them to be placed, in what position was the military force of
the United States at this moment? Was it not proper that this business
should be inquired into? He had been given to understand, long ago, that
an inquiry on this subject was to be courted; it had not taken place. He
had no more to say, but moved the following resolution:
_Resolved_, That the President of the United States be
requested to cause an inquiry to be instituted into the conduct
of Brigadier-general James Wilkinson, Commander-in-chief of
the Armies of the United States, in relation to his having, at
any time, while in the service of the United States, corruptly
received money from the Government of Spain or its agents.
Mr. CLARK said he unexpectedly heard himself named, and he would observe
that it had been long supposed, from his residence in Louisiana, his
acquaintance with military officers, and the various means of information
which he might have possessed while Consul at New Orleans, that he was
acquainted with certain transactions which had taken place in that
country. The knowledge which he had possessed he had endeavored to impart
to the Administration at different times, both verbally and by a written
correspondence, to which a deaf ear had been turned. As this information
had not been attended to, he had refused to gratify curiosity on the
subject. And, notwithstanding the gentleman’s calling upon him, he felt
himself bound to say that he would not be influenced by fear, favor, or
affection, to give any information on the subject, except compelled by a
resolution of the House.
Mr. THOMAS moved that the resolution offered by Mr. RANDOLPH should lie
on the table; but a motion made to consider was agreed to.
Mr. RANDOLPH said, as it appeared by the declaration of the gentleman
from New Orleans, that he did possess information, and as the House had a
right to it, he wished the Speaker or some other gentleman to inform him
of the manner in which it might be obtained.
[No order was taken on this point.]
Mr. TAYLOR moved that the resolution be committed to a Committee of the
Whole, not on to-day or to-morrow, but at a distant day, that time might
be afforded for consideration.
After debate, Mr. TAYLOR withdrew his motion.
Mr. GARDENIER moved that it be referred to a select committee, with power
to send for persons, papers, &c.
Mr. MARION moved to strike out that part of this motion giving power to a
select committee to send for persons, papers, &c.
On the foregoing motions a very lengthy and somewhat desultory debate
ensued of about five hours. The debate turned on many incidental
questions, among which, whether Congress had a constitutional right to
request the President to cause the proposed inquiry to be made? To this
it was answered that Congress had as much right to make this request
as to request the President to lay before them public papers--either of
which requests he might refuse. It was also said, that in making this
request, the House could not command more attention than was due to a
respectable individual.
It was doubted whether a member could be called upon to give information
in his seat, or at the bar of the House? In answer, precedents were
produced of cases in which members of the House had been interrogated at
the bar.
It was also contended, that if delivered in his place, the communication
would be liable to commentary or reply, by any gentleman who might think
proper to discuss it, in the same manner as any other speech.
It was made a question whether this information could be more properly
received by a Committee of the Whole, or a select committee, or by the
House? It was said on this, that it had heretofore been the course of
procedure to empower chairmen of committees in such cases to administer
oaths; that in the House a member could be compelled to give information
if the House thought fit, but in Committee of the Whole he could not
be compelled; that if information or evidence were to be received in
the House, it would perplex their proceedings by loading the table and
journals with interrogatories, &c.
It was questioned whether it were proper to decide it now, to refer it,
or to postpone it? On these points there appeared to be a great diversity
of opinion--some thinking that the evidence which they had received
was sufficient to induce them to pass the resolution without further
consideration, being a mere request to the President to inquire; others
wished further time and more evidence previous to giving their vote on
the subject, considering it of great importance; others were in favor
of a reference to a committee, to consider all the foregoing points as
well as the propriety of the main resolution; some wished this committee
to have power to send for persons and papers, to report to the House
their opinions on this subject, together with evidence, believing that
positive and satisfactory evidence should be produced before they adopted
this resolution, and as it was impossible to understand precisely the
evidence now produced from the mere reading of it; other gentlemen wished
it referred to a committee without power to send for persons, papers,
&c., as they conceived the House did not possess power to enforce their
orders in such cases, General Wilkinson being a military and not a civil
officer, whom the President alone had power to remove.
None of these points were decided either directly or by implication.
In the course of this devious discussion, the succeeding observations on
the main subject were made by different gentlemen.
Mr. W. ALSTON had heard nothing in the documents read to-day impeaching
the character of General Wilkinson more than what the newspapers
throughout the Union had teemed with for two years, except, indeed, a
letter from Mr. Power; and who was Mr. Power, or what credibility could
be attached to any thing emanating from him? Every person in the United
States who could read knew his character. He was opposed to coercing
evidence or considering a resolution proposing an inquiry, even if he
were in favor of the inquiry.
Mr. SMILIE thought the debate which had already taken place on a
reference totally improper. He had heard sufficient evidence on this
subject to convince him that such an inquiry was necessary; he did not
think that there could be any further doubt on the subject. The House
could not try General Wilkinson; he must be tried by another tribunal.
They owed it to the country and to General Wilkinson himself to request
an inquiry, and he hoped there would not be a dissenting voice on the
question of agreement to the resolution. He could not give an opinion
as to the guilt or innocence of General Wilkinson, but he thought it
absolutely necessary that an inquiry should be had.
Mr. GARDENIER was satisfied of the impropriety of proceeding on the
consideration of any question of importance too hastily, more especially
in a case so materially affecting an officer of high rank in the United
States. He wished to have time to consider fully before he could vote on
a subject of as much magnitude as this; they should not act from first
impressions. If the subject were referred to a committee with power
to send for persons, papers, &c., the testimony on the subject would
come before them in a proper shape, and not with the inaccuracy which
must always attend information given in this manner, but in a condensed
form, in which its force might be fully felt. He did not wish to be
precipitated into an inquiry too soon; neither did he wish an inquiry
to be made because it was due to General Wilkinson. If this inquiry was
courted by, and this motion intended as a favor to General Wilkinson,
he was astonished that it had not been brought forward before. There
certainly had been before ground enough shown for an inquiry into his
conduct; but if General Wilkinson’s conduct had so far evinced his purity
as not to excite in the Administration even a suspicion against his
character, if no inquiry had been made on the charges which had resounded
from every part of the Union, Mr. G. did not wish now, merely for the
sake of doing justice to that officer, to press an inquiry which the
Executive had not thought proper to make. Neither did he wish rashly to
decide on this question, because in doing this they would add the weight
of their accusation to the cries of the whole nation; the united force of
which no individual could repel.
Mr. CHANDLER said this was a subject which had been long before the
nation, and with which they were all acquainted: if that officer was
innocent, it was due to himself and his friends that an inquiry should be
made; if he were guilty, it was due to the United States. The evidence
produced was sufficient on which to ground an inquiry, and he was ready
to decide without further time.
Mr. NICHOLAS had no doubt but an inquiry ought to be made; after what had
been heard, if General Wilkinson were the lowest officer in the United
States, he should be of opinion that an inquiry ought to be made, but
he doubted whether this was a question on which they were now prepared
to decide. For this reason he had seconded the motion for referring the
resolution to a select committee, who could consider whether this subject
came under cognizance of the House; he considered the House as a mere
legislative body, except in the single case of impeachment. He was not
prepared to say what was proper to be done with this resolution, but
his first impression was against acting on it. It would open doors for
receiving complaints of the misconduct of any officer; he did not think
this power was lodged in the House, and he had no wish to assume powers
which did not pertain to them. As to the question whether there should
be an inquiry or not, no man could doubt. An inquiry must be made. Would
it be said that an office of this importance should be suffered to be
retained by a man who had received a pension from a foreign Government?
He thought it could not; and, therefore, he wished an inquiry to be made
into the truth of this charge.
Mr. BURWELL was decidedly opposed to reference to any committee whatever.
It seemed to be the universal opinion that an inquiry ought to be had on
the conduct of the Commander-in-chief of the Army of the United States;
and it was highly important that the subject should be acted on speedily.
If the nation was (as appeared probable) to be involved in war, it was
necessary that the Commander-in-chief should possess the confidence of
the Army, the People, and the Government.
Mr. JOHNSON said the good people of Kentucky were interested in this
subject. Many reports to the prejudice of General Wilkinson existed
there; nothing certain had appeared against him, but the people
entertained doubts on the subject; there were circumstances which they
wished to be investigated; if nothing could be found against him, the
sooner his innocence was known the better. Knowing this, he should not
hesitate to give his vote in such a manner as to dispose of the subject
most speedily. The investigation was due to the people, and to the man
himself.
Mr. MACON said if ever there had been a time since the year 1783, in
which it was particularly necessary that those persons in office should
have the confidence of the Government and of the people, that time had
arrived. Could it be expected after hearing the information which had
been produced that the people would have confidence in General Wilkinson?
It was as important that the Commander-in-chief should be free from
suspicion as that the President or the House of Representatives should
be unsuspected. The Commander-in-chief during the American Revolution was
irreproachable; calumny never assailed him, and he of course enjoyed the
full confidence of the people. The evidence which had been this day read,
they were told, had neither been before the grand jury nor the court
at Richmond, and there was certainly sufficient on which to ground an
inquiry.
[An extended discussion took place, and continued, at
intervals, until the 7th of January, when Mr. RANDOLPH withdrew
his motion, to make room for the following from Mr. BURWELL of
Virginia:
_Resolved_, That Mr. John Randolph, a Representative in
Congress from the State of Virginia, and Mr. Daniel Clark,
Delegate from the Territory of Orleans, be requested to lay
upon the Clerk’s table, all papers or other information
in their possession “in relation to the conduct of
Brigadier-general James Wilkinson, while in the service of the
United States, in corruptly receiving money from the Government
or agents of Spain.”
This resolution was adopted by a vote of 90 to 19.
In compliance with this vote, Mr. RANDOLPH immediately laid on
the table the documents he had read on the 31st, and Mr. Clark,
on Monday the 11th, laid on the table the following statement:]
_General Wilkinson._
DANIEL CLARK’S STATEMENT.
In obedience to the direction of the House of Representatives,
expressed in their resolution of Friday last, I submit the
following statement:
I arrived from Europe at New Orleans in December, 1786, having
been invited to the country by an uncle of considerable wealth
and influence, who had been long resident in that city. Shortly
after my arrival, I was employed in the office of the Secretary
of the Government--this office was the depository of all State
papers. In 1787, General Wilkinson made his first visit to New
Orleans, and was introduced by my uncle to the Governor and
other officers of the Spanish Government.
In 1788, much sensation was excited by the report of his having
entered into some arrangements with the Government of Louisiana
to separate the Western country from the United States, and
this report acquired great credit upon his second visit to
New Orleans in 1789. About this time I saw a letter from the
General to a person in New Orleans, giving an account of
Colonel Connolly’s mission to him from the British Government
in Canada, and of proposals made to him on the part of that
Government, and mentioning his determination of adhering to his
connection with the Spaniards.
My intimacy with the officers of the Spanish Government and
my access to official information, disclosed to me shortly
afterwards some of the plans the General had proposed to the
Government for effecting the contemplated separation. The
general project was, the severance of the Western country
from the United States, and the establishment of a separate
Government in the alliance and under the protection of Spain.
In effecting this, Spain was to furnish money and arms, and
the minds of the Western people were to be seduced and brought
over to the project by liberal advantages resulting from it,
to be held out by Spain. The trade of the Mississippi was to be
rendered free, the port of New Orleans to be opened to them,
and a free commerce allowed in the productions of the new
Government with Spain and her West India Islands.
I remember about the same time to have seen a list of names of
citizens of the Western country which was in the handwriting of
the General, who were recommended for pensions, and the sums
were stated proper to be paid to each; and I then distinctly
understood that he and others were actually pensioners of the
Spanish Government.
I had no personal knowledge of money being paid to General
Wilkinson or to any agent for him, on account of his pension,
previously to the year 1793 or 1794. In one of these years, and
in which I cannot be certain, until I can consult my books, a
Mr. La Cassagne, who I understood was Postmaster at the Falls
of Ohio, came to New Orleans, and, as one of the association
with General Wilkinson, in the project of dismemberment,
received a sum of money, four thousand dollars of which, or
thereabout, were embarked by a special permission, free of
duty, on board a vessel which had been consigned to me, and
which sailed for Philadelphia, in which vessel Mr. La Cassagne
went passenger. At and prior to this period I had various
opportunities of seeing the projects submitted to the Spanish
Government, and of learning many of the details from the agents
employed to carry them into execution.
In 1794, two gentlemen of the names of Owens and Collins,
friends and agents of General Wilkinson, came to New Orleans.
To the first was intrusted, as I was particularly informed by
the officers of the Spanish Government, the sum of six thousand
dollars, to be delivered to General Wilkinson on account of his
own pension, and that of others. On his way, in returning to
Kentucky, Owens was murdered by his boat’s crew, and the money
it was understood was made away with by them. This occurrence
occasioned a considerable noise in Kentucky, and contributed,
with Mr. Power’s visits at a subsequent period, to awaken the
suspicion of General Wayne, who took measures to intercept
the correspondence of General Wilkinson with the Spanish
Government, which were not attended with success.
Collins, the co-agent with Owens, first attempted to fit out a
small vessel in the port of New Orleans, in order to proceed to
some port in the Atlantic States; but she was destroyed by the
hurricane of the month of August of 1794. He then fitted out a
small vessel in the Bayou St. John, and shipped in her at least
eleven thousand dollars, which he took round to Charleston.
This shipment was made under such peculiar circumstances
that it became known to many, and the destination of it was
afterwards fully disclosed to me by the officers of the Spanish
Government, by Collins, and by General Wilkinson himself, who
complained that Collins instead of sending him the money on his
arrival had employed it in some wild speculations to the West
Indies, by which he had lost a considerable sum, and that in
consequence of the mismanagement of his agents he had derived
but little advantage from the money paid on his account by the
Government.
Mr. Power was a Spanish subject, resident in Louisiana, till
the object of his visits to the Western country became known
to me in 1796, when he embarked on board the brig Gayoso, at
New Orleans for Philadelphia, in company with Judge Sebastian,
in which vessel, as she had been consigned to myself, I saw
embarked under a special permission four thousand dollars
or thereabout, which, I was informed, were for Sebastian’s
own account, as one of those concerned in the scheme of
dismemberment of the Western country.
Mr. Power, as he afterwards informed me, on his tour through
the Western country, saw General Wilkinson at Greenville,
and was the bearer of a letter to him for the Secretary of
the Government of Louisiana, dated the 7th or 8th March,
1796, advising that a sum of money had been sent to Don
Thomas Portell, commandant of New Madrid, to be delivered to
his order. This money Mr. Power delivered to Mr. Nolan, by
Wilkinson’s directions. What concerned Mr. Nolan’s agency
in this business I learned from himself, when he afterwards
visited New Orleans.
In 1797, Power was intrusted with another mission to Kentucky,
and had directions to propose certain plans to effect the
separation of the Western country from the United States.
These plans were proposed and rejected, as he often solemnly
assured me, through the means of a Mr. George Nicholas, to whom
among others they were communicated, who spurned the idea of
receiving foreign money. Power then proceeded to Detroit to see
General Wilkinson, and was sent back by him under guard to New
Madrid, from whence he returned to New Orleans. Power’s secret
instructions were known to me afterwards, and I am enabled to
state that the plan contemplated entirely failed.
At the period spoken of, and for some time afterwards, I was
resident in the Spanish territory, subject to the Spanish
laws, without an expectation of becoming a citizen of the
United States. My obligations were then to conceal, and not to
communicate to the Government of the United States the projects
and enterprises which I have mentioned of General Wilkinson and
the Spanish Government.
In the month of October, of 1798, I visited General Wilkinson
by his particular request at his camp at Loftus’ Heights,
where he had shortly before arrived. The General had heard
of remarks made by me on the subject of his pension, which
had rendered him uneasy, and he was desirous of making some
arrangements with me on the subject. I passed three days
and nights in the General’s tent. The chief subjects of our
conversation were, the views and enterprises of the Spanish
Government in relation to the United States, and speculations
as to the result of political affairs. In the course of our
conversation, he stated that there was still a balance of ten
thousand dollars due him by the Spanish Government, for which
he would gladly take in exchange Governor Gayoso’s plantation
near the Natchez, who might reimburse himself from the treasury
at New Orleans. I asked the General whether this sum was due
on the old business of the pension. He replied that it was,
and intimated a wish that I should propose to Governor Gayoso
a transfer of his plantation for the money due him from the
Spanish treasury. The whole affair had always been odious to
me, and I declined any agency in it. I acknowledged to him that
I had often spoken freely and publicly of his Spanish pension,
but told him I had communicated nothing to his Government on
the subject. I advised him to drop his Spanish connection.
He justified it heretofore from the peculiar situation of
Kentucky; the disadvantages the country labored under at the
period when he formed his connection with the Spaniards, the
doubtful and distracted state of the Union at that time, which
he represented as bound together by nothing better than a rope
of sand. And he assured me solemnly that he had terminated his
connections with the Spanish Government, and that they never
should be renewed. I gave the General to understand that as
the affair stood, I should not in future say any thing about
it. From that period until the present I have heard one report
only of the former connection being renewed, and that was in
1804, shortly after the General’s departure from New Orleans.
I had been absent for two or three months, and returned to the
city not long after General Wilkinson sailed from it. I was
informed by the late Mayor, that reports had reached the ears
of the Governor, of a sum of ten thousand dollars having been
received by the General of the Spanish Government, while he was
one of the Commissioners for taking possession of Louisiana.
He wished me to inquire into the truth of them, which I agreed
to do, on condition that I might be permitted to communicate
the suspicion to the General, if the fact alleged against him
could not be better verified. This was assented to. I made
this inquiry, and satisfied myself by an inspection of the
treasury-book for 1804, that the ten thousand dollars had not
been paid. I then communicated the circumstance to a friend of
the General, (Mr. Evan Jones,) with a request that he would
inform him of it. The report was revived at the last session
of Congress, by a letter from Colonel Ferdinand Claiborne,
of Natchez, to the Delegate of the Mississippi Territory. A
member of the House informed me that the money in question was
acknowledged by General Smith to have been received at the time
mentioned, but that it was in payment for tobacco. I knew that
no tobacco had been delivered, and waited on General Smith for
information as to the receipt of the money, who disavowed all
knowledge of it; and I took the opportunity of assuring him,
and as many others as mentioned the subject, that I believed it
to be false, and gave them my reasons for the opinion.
This summary necessarily omits many details tending to
corroborate and illustrate the facts and opinions I have
stated. No allusion has been had to the public explanations
of the transaction referred to, made by General Wilkinson
and his friends. So far as they are resolved into commercial
enterprises and speculations, I had the best opportunity of
being acquainted with them, as I was, during the time referred
to, the agent of the house who were consignees of the General
at New Orleans, and who had an interest in his shipments, and
whoso books are in my possession.
DANIEL CLARK.
WASHINGTON CITY, Jan. 11, 1808.
* * * * *
DISTRICT OF COLUMBIA, _to wit_: January 11, 1808.
Personally appeared before me, William Cranch, chief judge of
the circuit court of the District of Columbia, Daniel Clark,
Esq., who being solemnly sworn on the Holy Evangelists of
Almighty God, doth depose and say, that the foregoing statement
made by him, under the order of the House of Representatives,
so far as regards matters of his own knowledge, is true, and so
far as regards the matters whereof he was informed by others,
he believes to be true.
W. CRANCH.
Mr. ROWAN moved to amend the resolution under consideration by striking
out all that part after the word “Resolved,” and inserting the following:
_Resolved_, That a special committee be appointed to inquire
into the conduct of Brigadier General James Wilkinson, in
relation to his having, at any time whilst in the service of
the United States, corruptly received money from the Government
of Spain or its agents, and that the said committee have
the power to send for persons and papers, and compel their
attendance and production--and that they report the result of
their inquiry to this House.
The SPEAKER declared the amendment to be a substitute, and of course not
in order.
Mr. RANDOLPH said he was decidedly of opinion that the gentleman from
Kentucky ought to have an opportunity of taking the sense of the House on
his motion: he therefore withdrew the resolution under consideration: when
Mr. ROWAN moved the resolution as above stated.
Mr. BACON said, notwithstanding the evidence which had just been read,
he would give the reasons why he could not yet vote for this House to
act in any manner on this subject, more especially as proposed by this
resolution. It was not to be concealed that the impressions made upon
his mind by the statement of the gentleman from New Orleans were very
considerable; but the impressions which that or any other statement were
calculated to make, were very different from the question of what it
was their duty to do in relation to it. He hoped that they would not be
so much impressed by it (for it contained a great deal he must confess)
as to suffer it to impel them into a path wide of their constitutional
limits. He did not mean to express a definite sentiment as to the guilt
or innocence of the officer involved.
He would not, under the privilege of his seat, on the one hand blazon
the merits of General Wilkinson to the world, nor on the other, declare
that he had sufficient evidence of his guilt. He would leave it to the
unbiased decision of the proper tribunal.
Mr. B. observed the other day, and would now repeat it, that it was not
within their power to adopt the resolution then under consideration,
or that now offered by the gentleman from Kentucky. He then and now
conceived that the offence with which General Wilkinson was charged,
might be cognizable by more than one department--certainly by the
Executive, from his being a military officer. He could say nothing about
the inquiry now instituted one way or the other; for if the constitution
did not authorize them to complete an inquiry, they had no right to
interfere with it, being the exclusive province of the Executive. It
struck him further, that if the facts in this statement should be proven
on a full examination to be true, (and he did not call its correctness
in question, for he had heard the same things from other people,) he
could not see why it was not a case cognizable by a judicial tribunal.
The constitution expressly forbade any person holding an office under
the United States to take a pension or donation from a foreign power.
The act of receiving money from a foreign power, therefore--the charge
made against General Wilkinson--was a crime against the supreme law
of the land, and cognizable by the judicial authority. If, therefore,
we could, as proposed, instruct, request, or in any manner interfere
with the Executive with respect to that portion of the inquiry which
appertains peculiarly to the Executive, as the only power competent to
remove this officer, why may we not in the same manner interfere with
the jurisdiction or cognizance of the Supreme Court? He could see no
difference; with equal justice they could interfere with one as with the
other.
Gentlemen who were in favor of an inquiry in this form, could not
have considered the subject so maturely as they ought. This was a
Government of distributive powers. One class had been delegated to
the Representative body, one to the Executive, and another to the
Judiciary. If they once began each to invade the other’s jurisdiction,
the distributive system was destroyed. It has been said that we are
the Representatives of the people; that it is our duty to see that
the Republic take no harm. This expression was calculated perhaps to
captivate the public ear, and acquire popularity, as well as to captivate
the House. But whatever they might think of what ought to have been
provided, they ought to consider what was. I do not think, because we may
on this, or any other occasion, suppose that we could do a great deal
of good, we ought to take any steps towards effecting an object until
we contemplate our particular powers in relation to that object. It has
been said that this House is the grand inquest of the nation. I do not
know what is meant by this expression; but if I understand the meaning of
the term, it conveys the same meaning as grand jury. Now, Mr. B. said,
he could not agree to any position that this House was legitimately,
on general subjects, the grand inquest of the nation. With respect to
impeachments, and in that case alone, were they the grand jury, for then
the two Houses acted in a judicial capacity--this House being the grand
inquest to inquire, and the Senate being the petit jury to judge of their
presentment. Now, if this House were the grand inquest to inquire into
this, or a similar case, in which an inquiry might seem to be conducive
to the interest of the nation, and were to present a result, where was
the jury to judge of the truth of their verdict? Was it to be tried by
the Senate? That was not pretended to be the course.
On all these accounts, therefore, whatever was the impression which the
paper this morning laid on the table might be calculated to produce
on their minds, he thought they ought sedulously to attend to the
constitutional limits of their duty, and not conclude, merely because
they might in any case act beneficially, that they had the power to act
in such case.
He had before observed, that he would not express an opinion; but he
would say that an inquiry ought to be had; it will, it must be had, and
it should be a full and impartial inquiry. If the inquiry which had
been instituted were but the semblance of an inquiry, for one it would
not satisfy him, or the people, or the nation; it ought not to satisfy
them. Gentlemen had said that a military court of inquiry would not be
competent. Mr. B. did not know what might be their particular power as
to sending for persons; but if that court had not sufficient power, it
was in the power of the House to clothe them with it. He thought they
might, though he would not say that they ought to do this. As a court
of inquiry might have been, or could be, clothed with this power; and,
adverting to what he had before said, that it was a case cognizable by a
judicial tribunal; and if so, that a judicial tribunal had all the power
that this House could exercise in any criminal case, and more than they
had in this, he should vote against every resolution going to express
a conviction that this House had any power or right whatever to act on
a subject solely within the constitutional right of the Executive or
Judiciary.
Mr. RANDOLPH said, if the gentleman who had just sat down had not given
his hasty impressions, but left his good understanding free to operate,
his objections to the resolution would have vanished. The great mistake
made by every gentleman who opposed this measure on constitutional
grounds, was this: that they looked upon an inquiry made by this House,
through the organ of one of its committees, as leading to the punishment
of the individual implicated, and that where this House was not competent
to inflict punishment, it was incompetent to make inquiry; this was the
great stumbling-block, which had impeded their apprehension. But he
would ask the gentleman from Massachusetts whether this House was not
competent to make an inquiry for its own legislative guidance? Was it not
competent, as well in its capacity of supervisor of the public peace, as
to obtain a guide for its own actions, to inquire into this matter? Was
not the House clothed with the power of disbanding the army? Now, suppose
a committee of the House, upon inquiry, were to report, perhaps, that not
only the Commander-in-chief, but the whole mass of the army, were tainted
with foreign corruption, or were abettors of domestic treason, could any
man assign to himself a stronger reason than this for breaking an army
on the spot? Did not the gentleman know, or rather did he not feel, that
this House had the right of refusing the supplies necessary for the army?
And could a stronger reason be given for a refusal to pass the military
appropriation bill than that they were nourishing an institution which
threatened our existence as a free and happy people? Let me, if it is
in order, ask the gentleman from Massachusetts to turn his attention to
the proceeding of which we have official notice in another branch of
the National Legislature, an inquiry into the conduct of one of its own
members. Did they not all know that that man’s offence was punishable
by a civil tribunal? But the inquiry was not there made with a view to
a trial, not to usurp the powers of the judiciary, but to direct that
body in the exercise of its acknowledged legislative functions. Inasmuch
as they possessed the power to expel one of their own members, to
amputate the diseased limb, they possessed the power, and exercised it,
to make an inquiry. Now, the gentleman from Kentucky had just as much
right to institute an inquiry which might lead to the exercise of the
legislative powers of this House, which might cause the disbanding of the
present army, the erection of another, or the refusal of supplies, as
to institute an inquiry into the conduct of a member with a view to his
expulsion, or of an Executive officer, with a view to impeach him before
the Senate.
Mr. R. therefore presumed that any inquiry which this House might choose
to make into the conduct of any officer, civil or military, was not
an interference with the powers of any of the co-ordinate branches of
Government; they were left free to move in their own orbits. If a crime
had been committed against the statute law of the United States by such
officer, the judiciary were as free to punish it as it was free to punish
a member of this House, into whose conduct, upon suspicion of treason or
misdemeanor, inquiry had been made, with a view to his expulsion. The
Executive likewise was left free to exercise his discretion; he was left
free to dismiss this officer, to inquire into his conduct himself, either
with his own eyes or ears, or by a military court; to applaud, or censure.
Did they take possession of the body of this officer by an inquiry into
his conduct? Did they interfere with the court of inquiry now on foot,
but totally incompetent to the object? Gentlemen, indeed, had said, that
if that court did not possess the power of compelling the attendance
of witnesses, we might clothe it with that power. In expressing this
opinion, the gentleman from Massachusetts had not been more considerate
than in expressing his first opinion. Could any one conceive a more
dreadful or terrible instrument of persecution than a military court,
clothed with the power to coerce the evidence, and the production of
papers of private citizens? Clothe them with this power, and there is not
a man in the United States who may not be compelled to go, at whatsoever
season, to the remotest garrison, on whatsoever trifling occasion, at
the will of a court martial, or a court of inquiry, leading to the
establishment of a court martial.
In the course of the present year, Mr. R. said it had been his lot to
receive, from no dubious or suspicious source, information touching,
not, to be sure, the immediate subject on which an inquiry had been
moved by the gentleman from Kentucky, but one intimately and closely
connected with it. He meant the project, through the instrumentality
of the Army of the United States, to dismember the Union; and he had no
hesitation in saying--and it had been the opinion of a large majority,
if not of every one of those of whom he had been a colleague--that the
Army of the United States was tainted with that disease; and that, so
far from the Army of the United States having the credit of suppressing
that project, the moment it was found that the courage of that Army
had failed, the project was abandoned by those who had undertaken it,
because the agency of the army was the whole pivot on which that plot had
turned! This was in evidence before the grand jury, who had the subject
in cognizance last spring. He said that these conspirators were caressed
at the different posts of the United States, in their way down the river,
and by officers of no small rank, that they received arms from them,
and the principal part of the arms these men had with them was taken
from the public stores; and under a knowledge of these circumstances,
was he not justified in the belief that the whole Army of the United
States was connected in the project? He did not mean every individual,
for there were some who could not be trusted, and some who were at posts
too far distant to be reached. That those who were confidants of the
Commander-in-chief were interested in the conspiracy, no man who knew any
thing of the circumstances could doubt. He, therefore, thought that the
resolution moved by the gentleman from Kentucky was every way reasonable.
Indeed, he did not know whether the resolution should not be so varied as
to embrace not only a charge of that nature, but all whatsoever.
Before he sat down, he should have it in his power to give to the House
something certainly very much resembling evidence in support of the
justice of his suspicions on this subject. On the 26th of January last,
the House would perceive by the Journals, a Message was received from
the President of the United States, “transmitting further information
touching an illegal combination,” &c., printed by order of the House, and
which he now held in his hand. In this Message is contained the following
affidavit:
“I, James Wilkinson, Brigadier General and Commander-in-chief
of the Army of the United States, to warrant the arrest of
Samuel Swartwout, James Alexander, Esq., and Peter V. Ogden,
on a charge of treason, misprision of treason, or such other
offence against the Government and laws of the United States,
as the following facts may legally charge them with, on the
honor of a soldier, and on the Holy Evangelists of Almighty
God, do declare and swear, that in the beginning of the month
of October last, when in command at Natchitoches, a stranger
was introduced to me by Colonel Cushing, by the name of
Swartwout, who, a few minutes after the Colonel retired from
the room, slipped into my hand a letter of formal introduction
from Colonel Burr, of which the following is a correct copy:
“‘PHILADELPHIA, 25th July, 1806.
“‘DEAR SIR: Mr. Swartwout, the brother of Colonel S., of New
York, being on his way down the Mississippi, and presuming
that he may pass you at some post on the river, has requested
of me a letter of introduction, which I give with pleasure, as
he is a most amiable young man, and highly respectable from
his character and connections. I pray you to afford him any
friendly offices which his situation may require, and beg you
to pardon the trouble which this may give you.
“‘With entire respect, your friend and obedient servant,
A. BURR.
“‘His Exc’y GEN. WILKINSON.’
“Together with a packet, which he informed me he was charged
by the same person to deliver me in private. This packet
contained a letter in cipher from Colonel Burr, of which the
following is, substantially, as fair an interpretation as I
have heretofore been able to make, the original of which I hold
in my possession.”
Mr. RANDOLPH said he should certainly have abstained from noticing the
circumstance he was about to mention, and which he had believed to be of
general notoriety, had it not been that within a very few days past, a
gentleman, (with whom Mr. R. was in habits of intimacy, and whose means
of information were as good as those of any member of the House,) to his
utter surprise, informed Mr. R. that he was totally ignorant of the fact.
Mr. R. said he held in his hand an actual interpretation of this
ciphered letter, which was made in the grand-jury room at Richmond, by
three members of that body, for their use, and in their presence; and
it was necessary here to state, that so extremely delicate was General
Wilkinson, that he refused to leave the papers in possession of the
grand jury: whenever the jury met, they were put into their hands, and
whenever they rose, the witness was called up, and received them back
again. Here was a copy--rather a different one from that which, “On
the honor of a soldier, and on the Holy Evangelists of Almighty God,”
was as fair an interpretation as General Wilkinson was able to make. A
comparison of the two would throw a little light on the subject. In the
printed copy of the last session might be read, “I (Aaron Burr) have
actually commenced the enterprise--detachments from different points,”
&c. In the original the words had been scratched out with a knife, so as
to cut the paper--“I have actually commenced”--not the enterprise, but
“the Eastern detachments.” Now mark; by changing the word _Eastern_ into
_enterprise_, and moving the full stop so as to separate _Eastern_ from
its substantive _detachments_, the important fact was lost, that, as
there were Eastern detachments under Colonel Burr, there must have been
_Western_ detachments under somebody else! Now, with a dictionary in his
hand, could any man change “Eastern” into “enterprise,” and move the full
stop, under an exertion of the best of his ability? Again: the printed
copy says, “every thing internal and external favors views;” the original
has it “favors _our_ views.” The word “our” perhaps could not be found
in any English dictionary! The printed version says again, “The project
[this is the best interpretation upon his oath which a party who had
never suffered the papers to go out of his hand could make] is brought to
the point so long desired.” The real interpretation is, “the project, my
_dear friend_, is brought to the point so long desired.”
Mr. R. said, exclusive of other and direct evidence, tending to show
the dependence which these conspirators put on the army of the United
States, and that it was eventually their sole hope and support, and that
the moment they found they were to be deprived of it they changed their
purpose--exclusive of this, and that the conspirators were received at
Massac and the other forts below, and of their there getting arms and
stores, there was something in this suppression of words in the letter
that spoke to his mind more forcibly than volumes of evidence, the
implication of a man who, had he been innocent, would have given all
the evidence in any letter he professed to interpret. This suppression
did certainly convey to the mind of Mr. R. an impression, which he had
never attempted to conceal, of the guilt not only of the principal
but of many of the inferior officers of the Army. But guilt is always
short-sighted and infatuated. Not content with that dubious sort of faith
which it might sometimes acquire when not brought to the trial, it had
attempted not only to occupy the middle ground of doubt and suspicion,
but to clothe itself with the reputation of the fairest character in the
country, and in so doing, had torn the last shred of concealment from its
own deformity. It stood now exposed to the whole people of the United
States; and he left the House to say whether they would shut their eyes
and ears, as they had been almost invited to do, against conviction.
Mr. SMILIE wished to know of the gentleman from Virginia whether there
was not a motion before the grand jury to find a bill against General
Wilkinson?
Mr. RANDOLPH said he had introduced this subject in order to suggest to
the gentleman from Kentucky the propriety of modifying or amending his
resolution. He would now give the information required by the gentleman
from Pennsylvania, and hoped he should not be considered as intruding on
the time of the House in so doing.
There was before the grand jury a motion to present General Wilkinson,
for misprision of treason. This motion was overruled upon this ground:
that the treasonable (overt) act having been alleged to be committed in
the State of Ohio, and General Wilkinson’s letter to the President of
the United States having been dated, although but a short time, prior to
that act, this person had the benefit of what lawyers would call a legal
exception, or a fraud. But, said Mr. R., I will inform the gentleman,
that I did not hear a single member of the grand jury express any other
opinion than that which I myself expressed of the moral (not of the
legal) guilt of the party.
Mr. SMILIE said he would not detain the House on this subject; he had the
other day taken an opportunity to state his sentiments on the subject,
that in his opinion there was no power in the House to proceed in the
business. The same sentiments he yet entertained; and when gentlemen told
him that it was necessary for the public safety that this House should
exercise such powers, and at the same time they could not point out a
single expression in the constitution vesting the House with this power,
he could not consent to vote with them: nor had a single gentleman who
had spoken, attempted to show that they did possess these powers. The
gentleman from Virginia had spoken of their power to disband the army; if
the gentleman chose to bring forward a resolution for that purpose, Mr.
S. said he would meet him. He had also told them that they had a power
to refuse supplies: Mr. S. said he agreed with the gentleman in this:
but when they stepped out of the road, and assumed a power not vested in
them, he could not go along with the gentleman. Was it not the duty of
the President alone to inquire, who possessed full power to act on the
information which might be the result of an inquiry? Certainly it was.
The officer interested in this discussion was undoubtedly subject to
trial by a court martial, and no doubt also by a court of justice; for
if he was guilty of the crimes laid to his charge, they were of a high
nature, and would subject him to the cognizance of the civil law.
But he would ask gentlemen, if they succeeded in passing the resolution
upon the table, what was next to be done? Did the House believe that they
could remove or punish a military officer for misconduct? If they could
not do this, and he presumed no gentleman would contend for this, Mr. S.
could see no reason for an inquiry. Were they to become mere juries for a
court of justice--mere collectors of evidence--for it was admitted that
they could not act upon it after it was collected? He believed the courts
of justice were possessed of sufficient authority without this House
volunteering their assistance.
Mr. S. remarked what would be the effect of this motion, which was
substantially the same as that proposed by the gentleman from New York,
and rejected by a large majority. It would answer the purpose of holding
up this man to suspicion for years to come, for aught he knew, without
producing any other effect. He was willing to inquire; he had seen from
the beginning of the business that an inquiry must take place. There had
been a number of papers laid upon the table relative to this; he was
willing to transmit them to the proper department, there to be made use
of, and he hoped the House would go no further. For in regard to the
proceedings which had taken place, they had exercised a right which did
not appertain to them in proceeding in the business at all; they had no
right to beset the character of the man; and he rested his objections on
this point, that no man could show him an authority for it. He was very
sorry, because he thought it would produce effects of a serious nature,
to hear a gentleman this day denounce the army as corrupted throughout.
He must tell that gentleman that he could not credit the assertion. They
had tried (without meaning to express any opinion as to the officer now
involved) their officers and found them trusty. And to hold them up
as unworthy of trust at this time, in a crisis like the present, was
impolitic and unjust. If gentlemen knew of any particular officers who
were corrupt, why could and did they not lodge information against them,
not by clamor here, but by proof before the proper authority?
Mr. S. in conclusion declared that he should not vote for this
resolution; for, in any way, a procedure by this House on the subject
would be incorrect.
Mr. RHEA, of Tennessee, called for the reading of the letter of ----
Duncan, contained in the evidence laid before the House this session
relative to the late trial at Richmond; it might be satisfactory in
explaining the differences between the version of the ciphered letter by
the grand jury and the translation made by General Wilkinson.
Mr. LOVE said, that although the form of the question had been varied,
by the resolution of the gentleman from Kentucky, (Mr. ROWAN,) yet the
principles of decision remained nearly the same as on the original
resolution; the same objections applied, as to the subject embraced by
the present form, and, so long as it thus remained, those objections
would continue to influence his determination.
These grounds of difficulty had been attempted to be removed by
the gentleman from Virginia, (Mr. RANDOLPH,) by arguing, that the
investigation of the subject might lead to measures which no one would
doubt it was competent to the House to act on. By pursuing the inquiry,
it was said, it might be found that it would be expedient to disband the
army, or withhold its necessary supplies: this, said Mr. L., is begging
the question. The terms of the resolution, in their present shape, cannot
possibly conduct a committee to any such inquiry: it is confined to a
single object; it is, whether the present commander of the army has
been guilty of corruptly receiving money from Spain. The charge alluded
to is understood to be of an ancient date; it is not suggested by any
one that the army is tainted with this crime, specially set forth in
the resolution: the charge, if proven, could not then be a cause for
disbanding the army, or withholding the necessary supplies. If an object
of this kind is contemplated let it be so stated, and an inquiry into the
grounds of such proposition, however strange in idea, would only be the
exercise of a constitutional right.
The resolution, Mr. L. repeated, called the attention of the House to
a single fact, it exhibited a charge already made penal, both by the
military and civil code; it respects a character over whom we have no
constitutional control, by impeachment or otherwise. If an improper
character is commissioned to the command of our armies, and continues
so, let the responsibility fall where the constitution has placed it,
on the Executive; the attention of the Legislature must be called to
other things than judging of the merits or crimes of the soldiery. But
it is objected that the military tribunal appointed to make an inquiry
on the demand of the person accused, and which the House understood was
now engaged in the performance of that duty, has no power to compel the
attendance of witnesses, or the production of papers. He would not for
a moment so far impeach the patriotism of those gentlemen, who have
declared themselves possessed of knowledge on the subject of the charge,
as to suppose they would not attend the respectful summons of a tribunal
erected by our own laws, for the investigation of crimes which they admit
are of importance to their country. Those gentlemen surely too well
understand the rights of others to object to a cross-examination; but if
a military court is not possessed of a power sufficient to compel, if it
should be necessary, the attendance of witnesses, the common judicial
tribunals are so; the civil, as well as the martial code, has cognizance
of such offences as are suggested; the same effect, as it respects a
military officer, would follow the establishment of guilt before either
tribunal. If gentlemen object to a military court, which the law has
instituted, let them resort to a civil one; it is there they may without
apprehension or difficulty make those disclosures which the good of
their country requires; it is not here that a power is found, either to
prosecute or punish the offences of military men. He hoped the time of
this Legislature would be better employed than in the usurpation of the
powers of the Judiciary or Executive, in the investigation of criminal
charges against military men, whom they could neither hear the defence
of, nor punish their crime, if proved.
Mr. L. said, that as to the truth and weight of the charges made against
the military character in question, he felt no disposition to decide; to
determine a man guilty of crimes of great enormity, without a hearing,
without examination or testimony, and without a possibility of defence,
was so hostile to every principle of justice, and common humanity even,
that he had not permitted his mind to enter into any investigation of
fact, or his feelings to enlist in the prosecution; much detail of
circumstance had been used, which ought to put the House extremely on
its guard against the influence of feeling in deciding the present
question. A gentleman had the other day said, that he felt no delicacy
towards a man, whom he had on his oath been obliged to say was guilty
of misprision of treason; it was thus intimated that the grand jury of
Virginia district, who investigated the subject of Burr’s conspiracy,
had agitated the question of General Wilkinson’s criminality; (setting
aside the observation which might well be made that Burr’s conspiracy was
no part of the present inquiry) it appeared to Mr. L., that the question
having been agitated, and no presentment being made of the officer now
charged, a considerable portion of the grand jury must have said in like
manner, on their oaths, that that officer was not guilty of misprision of
treason; but to-day the same gentleman has informed us, that the reason
why no presentment was preferred against Wilkinson was, that he escaped
by a legal exception in his favor; that although the immorality of his
act was complete, (as well as he could understand the gentleman at the
distance he was from him,) the offence could not be located, or some
other legal defect. Mr. L. said he confessed he was not well informed
of the proceedings of the grand jury, he had heard some noise which he
had scarcely listened to about them: he had never before heard, that
the principal officers of the army were leagued in Burr’s conspiracy:
he would say, however, that the grand jury assembled on that occasion,
was as able and respectable a one as ever sat on any former occasion of
the kind, and he confessed he was surprised to hear they had omitted to
exercise a general power, which, when it appeared to them the officers
of our army were actually conspirators against the Government, as we are
now informed, it became imperiously their duty to exercise, by making
a presentment of the dangers of the country: any general evil a grand
jury may present, if they believe it to exist only in intention. The
acts of a legislative body, and some he believed of Congress itself, had
been presented by grand juries as of evil tendency; and one instance
at least has occurred of a grand jury having presented the very court
which presided over it. Certainly such an evil as a general conspiracy
of the officers of our army required some public exhibition of the
offence; even if it was such in them as well as the commander, as not to
be brought, in the opinion of the jury, within the form of an efficient
prosecution. Mr. L. said, he was sorry that he too had been led into
the notice of facts by the surprising things he had heard. He hoped
unnecessary delay would be avoided. The time occupied in the discussion
of this dispute had already, he would presume, prevented some of the
committees from reporting on subjects of the first consideration. The
present eventful and threatening aspect of foreign affairs demanded
attention; he particularly apprehended it might have prevented the
report of the bill for arming the militia, as well as other subjects of
national interest, from being taken up. Let us then, said Mr. L., meet
this question, decide upon it, and send to the proper departments the
information which will enable them to act in the manner we are told they
have attempted, under the laws in existence. The question which they
solely ought now to consider was their right to act. He believed there
was no man in that House who did not, after what had been said, wish a
thorough investigation, but certainly the mode to be pursued was obvious
and easy. He conceived it would be entirely sufficient if the papers and
information were transmitted to the proper department, and should, if
the resolution was negatived, beg leave, if he could get the floor, to
offer a resolution, with a preamble, detailing the reasons which governed
him in his vote, by which it might appear, that although he felt as much
anxiety as any man that the proper tribunals should act on the subject,
yet his objection to the present mode proposed, arose from a source above
mere matters of expediency or temporary feeling.
Mr. L. then said, as it was not in order in the then stage of the
debate, to propose his resolution, he would read it, in order that the
House might be apprised of his views. He then concluded by reading the
following resolution:
_Resolved, therefore_, That the papers and information laid
on the Clerk’s table of this House, relative to General James
Wilkinson, be referred to the Secretary of the War Department
of the United States.
Mr. LYON said, notwithstanding the impression made upon his mind by the
statement read this day, he should vote in the same way as he should have
done before he heard it, if the power of the House to make an inquiry
were not called in question. He would as soon cut off his right hand as
to say that this House had not the power to call in question the conduct
of the Commander-in-chief. Was this House prepared to say that they
had not the power to inquire whether or not the Commander-in-chief has
sufficiently the confidence of the people and of the Army? He would not
commit himself in this way; and, after what had been urged as reasons for
voting against the resolution, he could not promise how he should vote.
The question was altogether varied by the motion now under consideration;
the former and original question was, whether they would request the
President to perform certain duties; it was now moved that they should
perform these duties themselves; and he should certainly vote in favor of
it, if it were contended that this House had not the power to pass it.
As to the creed of the gentleman behind him, (Mr. LOVE,) he could not
subscribe to it; it was too long for his comprehension; but if it were
intelligible, he would tell the gentleman behind him that he could not
agree with him.
He should be satisfied to see what the court of inquiry would do in
this business; and if they did not do what would satisfy the nation, he
should be perfectly willing to proceed in the inquiry. He thought that
then, feeling as his colleague (Mr. ROWAN) must feel, it would come
properly before the House. Mr. L. had long had a suspicion of this man,
and his mind was much at variance on the subject. None of his feelings
would induce him to surrender the right of the House to inquire, and if
this were made a general ground of opposition to the motion, he should
assuredly vote for it.
Mr. TAYLOR confessed that the importance of the subject was sufficient to
claim his ardent attention, and from the consideration he had given it,
he was opposed to the resolution, and felt it a duty not to give a silent
vote on a measure, which by the terms of the resolution offered was not
to inquire on a general subject, (which even on this subject unconnected
with any individual, but as he might be incidentally concerned, might
be excusable,) but to inquire about the conduct of a single individual;
or in short and plain terms to denounce the man; a man, too, holding an
office out of the immediate control of this House, amenable to other
tribunals, and liable, if guilty of all that has been asserted against
him, to the sentence of death, both by our civil and military courts.
This measure of denouncing an individual whom this House cannot impeach,
said Mr. T., is then a new case, and one which, if adopted, will
establish a precedent dangerous to this Government, dangerous to the life
and liberty, the honor and reputation of the citizen, and calculated in
its effects to put at hazard every institution and sacred provision in
the constitution under which we profess to act.
We shall in the first place interfere with the Executive Department--with
which department the constitution has expressly intrusted the care,
the responsibility of watching over the army; and in respect to the
inquiry proposed to be made by a committee of this House, when we have
made it, we can pass no sentence, we can ground no impeachment against
the denounced; we should then have to come back and acknowledge our
imbecility, by asking, or requesting the President to do that which we
found ourselves unable to perform.
We assume to ourselves the responsibility which properly attaches to that
department. I rejoice that here the maxim is monstrous and exploded, that
the Executive can do no wrong; that here the ministers are not liable
for the acts of the superior, but the superior accountable for the acts
of his ministers and agents. If General Wilkinson is the monster in
iniquity his enemies state him to be, if the President has continued
him in employment after he had evidence positive of his guilt, or if,
as has been charged, he has turned a deaf ear to the proof about to be
offered by an ardent, a disinterested friend to his country, why has
not this blazing patriotism burst out in a direct and not an indirect
impeachment of the Executive? But the sense of the nation is too well
known to venture at this thing. No, say the advocates of the resolution,
this has nothing to do with confidence in the Executive--and yet if the
Executive has a spark of that patriotism which he ought to possess, if he
is not the protector and upholder of a knowing traitor, would he dare to
disregard the information, if legally substantiated, which the gentleman
from Virginia and the delegate from Orleans had laid on your table? If
confidence has nothing to do with this, why did not these gentlemen hand
in to that department of the Government which had the constitutional
cognizance and final control of this business, all the information they
had on this subject? Why make this House the great gun from which to
thunder their denunciations and fulminations against an individual, when
there was a shorter and more easy way of getting at their object? A
corrupt Executive would desire the very measure proposed. Interfere with
his functions, assume his responsibility--what would be the result? You
denounce the agent, the tool of such an Executive, (the Colonel Vernon
of Cromwell, for example.) You order, or you request, that his conduct
should be inquired into. Well, in obedience to your order, this corrupt
Executive appoints a corrupt board of officers. The conduct is inquired
into, and the accused comes out glossed over with an honorable acquittal
from this court, and ready and more fitly prepared to execute the
ambitious designs of his protector. Ask of the Executive why is this so?
He answers, I have obeyed your orders, the responsibility is yours and
not mine. This will be the effect of our travelling out of our defined
orbit and taking upon ourselves what never was intrusted to us by the
constitution under which we act--already, when gentlemen say that we are
not to know that a court of inquiry is ordered in this case, but which
every one does know, is now sitting--I say, already do they anticipate
the result, and in a fore-handed way make it a theme of abuse against
that Executive, with which they tell us confidence or diffidence has
nothing to do in this question.
But to be done with these words, so offensive to the chaste ears of the
supporters of this measure. Mr. T. said he would ask these gentlemen if
they would allow their own judgment, views, and conduct to be judged of
by those who by duty were compelled to decide upon the measures they
proposed? They surely did not claim that infallibility which they denied
to others. Well, then, said he, place them in one scale, with all their
acts or with any particular act, and place the Executive in the other,
with all or with any of his acts. Nay, sir, take the present subject only
as a criterion. Let the nation hold the balance. I have no hesitation in
saying that their scale would kick the beam. This I am compelled to say;
I have more confidence in the present Administration than I have in those
who brought forward and now support the presentation. I seek for nothing
but truth--I would not kiss my hand for any thing that the Executive
could do for me or mine. I am not one of those politicians who expect pay
for doing nothing.
I come now, said Mr. T., to my second grand objection to this
measure--that it will interfere also with the Judiciary Department of
our Government. Treason and perjury have been alleged against this
individual; by what tribunal are these crimes cognizable? Certainly by
the courts of law. The constitution has guarantied to every citizen the
right of a fair and impartial trial by his peers, a jury unbiased of
his countrymen--will this right be preserved to General Wilkinson after
the denunciatory speeches which have been uttered on this floor are
published? Will this right be preserved to him, when the whole continent
has been searched not only for all that Burr could collect, but for a
new enlistment, a host of witnesses against this man? Your committee
of denunciation collects the testimony, the committee makes report of
the whole to this House, and it is published. I say, will not this be
prejudging the man, and condemning him, before he has been brought before
your judicial tribunal, to which he is amenable if guilty of all that
has been urged against him on this floor? After such a procedure would
there be a possibility of this man’s obtaining a fair trial, of his
enjoying that right which is secured to him by the sacred provisions of
the constitution, and which even in a country far less jealous of the
liberties of the citizens than ours ought to be, he would have secured to
him?
I come now, said Mr. T., to my third objection to this measure--and
which is nearly allied to the last--and that is, that in our military
courts too you deprive this man of a fair trial. Every observation I have
made in respect to the right of a fair trial by jury, I contend applies
equally strong to the trials in our military courts. But this man is a
soldier, he is Commander-in-chief of your standing Army, therefore he is
fair game--therefore we must hunt him down. Let us see what power the
constitution gives us in this respect--we have the power of disbanding
the Army at any time by denying the vote of supplies--we are forbid to
part with that power for a longer term than for two years, we can then
disband the Army, in its climax of misconduct and disaffection, in spite
of the Executive. Mr. T. asked was this the object at present? If it was,
why did the gentlemen make the terms of their resolution wide enough
to embrace the whole Army? But he gave them the credit due to their
candor--they drove openly and above board at the man.
There was another power given to the Legislature of the United States by
our constitution--to pass laws for the regulation and government of the
Army. Had this power been exercised? It had. Had the Legislature been
restricted in the severity of the laws enacted for this body of men? They
would see by looking over them. Mr. T. said he had looked over them. One
hundred and one articles were contained in the statute book, every one of
which (except about half a dozen) were distinct definitions of crimes.
Of the statute book he wished to speak respectfully; the severity of
this code might be necessary; but duty compelled him to speak of it as
he found it. It would seem as if the Legislature in penning this law
had borrowed the pen of Draco, dipped in blood. Every step they took,
from article to article, was marked with blood, with scourges, and with
death. No less than sixteen definitions were there contained of crimes
capital and punishable with loss of life. After having armed the courts,
which, said Mr. T., are appointed to sit in judgment on these soldiers,
(and remember that not only the standing Army, but the militia also are
at times subject to these rules,) with the power of life and death placed
in their hands, the scourge, the halter, and the musket, for lacerating
and destroying the infractors of these articles, the Legislature, with
all this severity, tempered the whole with one divine, one beneficial
principle. This box of Pandora contains hope--the hope of a fair,
impartial, and unbiased trial, by their comrades, by their peers. But
this hope, by your present resolution, is proposed to be destroyed: as
if the gloom around the arrested soldier was not sufficiently dark, you
now are about to establish a precedent, which whenever used will shut out
every gleam of light. Would it be surprising that men thus proscribed,
marked out as the fit objects on which to pour out your vials of wrath,
should in time become disaffected, should turn their arms against their
country? Yes, by the course proposed you prejudge a citizen--you mark
your victim. What despotism can be worse than this? The pious Parliament
of England who brought Cromwell into power did this very thing. They
were not content with the uncertainty of the proceedings of the criminal
courts of that day--they appointed a committee, (as is proposed now,
sir,) a court of high commissions, to take care that the courts of law
and the military courts should let none go whom they had marked for
destruction. How did this business end? The very pious and country-loving
Parliament, who were so intent upon the public good as to break down
and trample on every opposing impediment either of law, religion, or
morality, and all for the public safety, (the very motive we hear now
urged,) were kicked out by Cromwell and that very army they had supported
at one time and proscribed at another; and were sent, according to the
language of that day, to seek the Lord elsewhere. And their degradation
produced gratulations from every part of the Commonwealth to the
Protector, and confirmed him in as absolute power as the Emperor of the
French by similar means has at this day acquired.
Why should I go back, said he, to the days of Cromwell. The effects of
the mistake in this respect of a gallant and infatuated nation now exist.
History need not record it for our instruction; the fatal error happened
in our time. It would be too painful to travel from step to step, and
detail the whole of the misfortunes of this gallant people. I will take,
I think, the most interesting incident in the French Revolution--the
point of time which decided that France was not to be a Republic. The
Girondists, who were the most enlightened, the most virtuous, perhaps
the only real Republicans in France, denounced Marat. Marat and his
friends made head against their opponents and in turn denounced them.
Marat was destroyed by an enthusiast, but his party prevailed. Yes,
from the rostrum in the conventional hall proceeded the poison, from
the National Convention was administered the dose which annihilated
all true Republicanism in that country--the system of prejudging the
criminal before his trial. How was this denouncing system improved upon?
At first, indeed, there was kept up the show of a trial in the courts
below, but the victim was nevertheless as certainly marked, or certainly
doomed to destruction. But the orators in the Convention, having a long
session, and finding nothing better to employ themselves in, multiplied
the victims so fast, that to be possessed of a handsome house or estate,
a beautiful wife, sister, or daughter, was crime sufficient to incur
denunciation--the courts became so crowded with victims, that to expedite
the business, instead of formal trials, the courts condemned _en masse_:
ten, twenty, or fifty, were delivered over to the public executioner,
with only the ceremony of passing in review before the judge; a motion of
his hand, or the waving of his _bonnet rouge_, was a sufficient signal
for the executioners to lead the denounced to the guillotine.
We have a constitution, (said he,) we have laws enacted for the
prevention and punishment of crimes. The rights of our citizens are, I
hope, sacredly guarded by the provisions contained in them. Shall we then
adopt this revolutionary measure?
All history shows--the experience of all ages ought to have impressed
this important truth on our minds--that in religion anathemas, in
politics denunciations, in popular assemblies, have led to the same
slaughter-house--fell intolerance and bloody persecution. Shall we now
throw aside our chart and compass, and venture in this wide, boisterous,
and dangerous sea of expediency?
Look at the constitution--search for this denunciatory power vested
in this House. What is it? We have a right to impeach a civil officer
for misconduct. What punishment can we demand for him when convicted?
Dismissal from office, and disqualification from holding any future
office of trust and profit. In nothing does the wisdom, the inspiration
of the framers of this instrument more appear than in this restriction.
They well knew the danger of introducing personal feelings and
resentments, of party rage and fury in this body; of gathering here armed
with the power of destroying one another.
I have said, on a former occasion, that this House had no power itself;
its committee cannot have the power of sending for persons, papers,
and records; it is nowhere directly given; it cannot be derived
incidentally, in a case, the cognizance of which is not given to us by
the constitution. I then stated the cases where this incidental power is,
_ex necessitate rei_, derived, viz: 1st. For collecting testimony whereon
to form articles of impeachment. 2d. Testimony may be thus collected in
deciding on the expulsion of a member, 3d. Where an election is contested.
The gentlemen who support the resolution have been desired to show the
power of the House for this purpose in this constitution or in any
law. They have not done so. They are obliged to resort to expediency,
and that expediency, I have contended, will not hold them out. But,
say they, the courts of inquiry and courts martial have no power of
collecting testimony, and we must do it for them. Will the depositions
taken before this House, or before your committee, be evidence in your
courts? They will not. To sum up the whole, although I must acknowledge
that the motives which actuated the mover and myself are, and must be
the same; I declare I think he means as well as I, the good of his
country; yet I would defy him to instance a more oppressive, a more
unfair mode of procedure in the Spanish inquisition than the preliminary
trial, for it is a trial of General Wilkinson, now carrying on, on this
floor, and about to be prolonged by hanging it upon tenter hooks before
a committee. Gracious God! what innocence can withstand this mode? He
is charged with being a Spanish pensioner in 1796--again, on the river
Sabine--a conspirator with Burr--a perjured man--a conspirator against
the liberties of the citizens whom he arrested as traitors and coadjutors
with Burr. These, denunciations are enforced with eloquence, mixed and
commixed, compounded and animadverted upon by as great talents as any in
the nation. No notice is given to him to attend and make defence. Thus,
with accumulated denunciations, but with but one document before us which
can look like evidence, and that _ex parte_, this House is to be pressed
into a vote which is to fix the stamp upon the character of the man, is
to mark him as the victim of the courts below. If he were a demon I would
not use him thus unfairly.
TUESDAY, January 12.
_General Wilkinson._
The House resumed the consideration of a resolution moved by Mr. ROWAN,
for the appointment of a special committee to inquire into the conduct of
Brigadier-General Wilkinson, with power to send for persons and papers,
and to compel their attendance and production, which was depending
yesterday at the time of adjournment: Whereupon, Mr. ROWAN moved to amend
the resolution, to read as follows:
_Resolved_, That a special committee be appointed to inquire
into the conduct of Brigadier-General Wilkinson, in relation
to his having, at any time, while in the service of the United
States, corruptly received money from the Government of Spain,
or its agents; or in relation to his having, during the time
aforesaid, been an accomplice, or in any way concerned with
the agents of any Foreign Power, or with Aaron Burr, in a
project to dismember these United States; and that the said
committee have power to send for persons and papers, and to
compel their attendance and production; and that they report
the result of their inquiry to this House.
A motion being made to amend this resolution, which gave rise to much
discussion, Mr. ROWAN withdrew it, and Mr. RANDOLPH immediately renewed
his original motion, in these words:
_Resolved_, That the President of the United States be
requested to cause an inquiry to be instituted into the conduct
of Brigadier-General Wilkinson, Commander-in-chief of the
Armies of the United States, in relation to his having, at any
time, while in the service of the United States, corruptly
received money from the Government of Spain, or its agents.
He said he had withdrawn it only to give the gentleman from Kentucky an
opportunity of taking the sense of the House on his proposition; to do
which, in his opinion, every gentleman had a right. He perceived that the
gentleman from Kentucky was about to be deprived of taking the sense of
the House by an evasion of the question, and now renewed his own motion,
which he had only withdrawn with an intention to renew it if that of the
gentleman from Kentucky should not be adopted. He would here say, that
though he did not agree with all the doctrines of the gentleman, that he
thought all his arguments which bore upon this case were unanswerable.
The House agreed to consider Mr. RANDOLPH’s resolution--51 to 36.
A further extended and heated discussion took place, interrupted by calls
for the question.
The question, on Mr. RANDOLPH’s resolution, was then taken by yeas and
nays--yeas 72, nays 49, as follows:
YEAS.--Evan Alexander, Lemuel J. Alston, Burwell Bassett,
William W. Bibb, William Blackledge, Thomas Blount, John Boyle,
William A. Burwell, William Butler, John Campbell, Epaphroditus
Champion, Martin Chittenden, Matthew Clay, Howell Cobb, John
Davenport, jr., Joseph Desha, James Elliot, William Ely, John
W. Eppes, Barent Gardenier, Francis Gardner, James M. Garnett,
Charles Goldsborough, Edwin Gray, John Harris, William Helms,
William Hoge, David Holmes, Benjamin Howard, Reuben Humphreys,
Richard M. Johnson, Walter Jones, James Kelly, Thomas Kenan,
Joseph Lewis, jun., Edward St. Loe Livermore, Edward Lloyd,
Nathaniel Macon, Robert Marion, Josiah Masters, Daniel
Montgomery, jun., Thomas Moore, Jonathan O. Mosely, Gurdon S.
Mumford, Thomas Newton, Timothy Pitkin, jr., Josiah Quincy,
John Randolph, John Rea of Pennsylvania, Jacob Richards,
Samuel Riker, John Rowan, John Russell, Dennis Smelt, Samuel
Smith, John Smith, Richard Stanford, William Stedman, Lewis
B. Sturges, Peter Swart, Samuel Taggart, Abram Trigg, George
M. Troup, Jabez Upham, James I. Van Allen, Nicholas Van Dyke,
Killian K. Van Rensselaer, Daniel C. Verplanck, Jesse Wharton,
Marmaduke Williams, Alexander Wilson, and Richard Wynn.
NAYS.--Willis Alston, jr., Ezekiel Bacon, David Bard, Joseph
Barker, Robert Brown, Joseph Calhoun, George W. Campbell,
Peter Carlton, John Chandler, Richard Cutts, Josiah Deane,
Daniel M. Durell, William Findlay, James Fisk, Meshack
Franklin, Isaiah L. Green, John Heister, James Holland, Daniel
Ilsley, Robert Jenkins, William Kirkpatrick, Nehemiah Knight,
John Lambert, John Love, Matthew Lyon, William McCreery,
William Milnor, Nicholas R. Moore, Jeremiah Morrow, John
Morrow, Roger Nelson, Thomas Newbold, Wilson C. Nicholas, John
Porter, John Pugh, John Rhea of Tennessee, Mathias Richards,
Ebenezer Seaver, James Sloan, John Smilie, Jedediah K. Smith,
Henry Southard, Clement Storer, John Taylor, John Thompson,
Archibald Van Horn, Robert Whitehill, Isaac Wilbour, and James
Witherell.
Mr. EPPES said he had stated on a former day, in his place, that no
information had at any time been received by the present Administration
which went to charge Brigadier-General Wilkinson with being a Spanish
pensioner. This statement was made in reply to a gentleman from Kentucky,
who thought it unnecessary to forward to the Executive the evidence
exhibited against General Wilkinson, on the ground that this evidence was
already in possession of the Executive Department. A fact so important
to the public ought not to rest on the assertion of any individual. If
corruption has at any period of our political existence fixed its fangs
on this Government, if men known to be Spanish pensioners have at any
period been honored with confidence by any administration, it is proper
the people should understand at what period this confidence commenced,
and by whom it was reposed. So far back as the year 1789 or 1790,
information was forwarded to the Executive Department of this Government,
that a combination between citizens of the United States and the Spanish
Government had been formed, for the purpose of dismembering the United
States. The information (together with the names of most of the persons
concerned in the combination) was forwarded to the first Administration
formed under this Government, at the head of which General WASHINGTON
was placed. It was known to the second Administration under Mr. ADAMS,
and additional information forwarded to him by Mr. Ellicott. If General
Wilkinson was originally concerned in this combination, he must have been
appointed to office by the first administration under this Government,
and continued by the second, with a full and complete knowledge of this
fact. The present Republican party found General Wilkinson in office, and
abundant proof can be produced that he possessed the confidence of the
two preceding Administrations. If he was originally a member of the old
Spanish combination, or has, at any period prior to the year 1801, been
guilty of any act calculated to destroy the public confidence, let the
responsibility rest on those who appointed and continued him in office.
We have seen in one State of the Union a member of this combination
removed from the important office of judge, on the ground of being a
Spanish pensioner. A charge of the same kind is now made on oath by a
member of this House, against an officer of the United States. It is time
that all the information possessed by the Government of the United States
on the subject of this combination, should be brought fairly before the
public. With a view to obtain this information, he offered the following
resolution:
_Resolved_, That the President of the United States be
requested to lay before the House of Representatives all the
information which may at any time from the establishment of
the present Federal Government to the present time, have been
forwarded to any department of the Government, touching a
combination between the agents of any foreign Government and
citizens of the United States, for dismembering the Union, or
going to show that any officer of the United States has at any
time corruptly received money from any foreign Government or
its agents; distinguishing as far as possible the period at
which such information has been forwarded, and by whom.
Mr. RANDOLPH seconded this motion.
After a few objections to this resolution from Mr. QUINCY, on account of
its being too comprehensive, not giving the President power to withhold
confidential correspondence, the question was, on motion of Mr. RHEA,
taken by yeas and nays, and carried unanimously, every member present, to
the number of one hundred and twenty, voting in the affirmative.
Mr. ROWAN said that although a decision on his resolution had been
eluded, out of respect for the opinions of gentlemen who objected to
particular parts of it, he had modified it, and offered it as follows:
_Resolved_, That a special committee be appointed to inquire
into the conduct of Brigadier-General Wilkinson, in relation
to his having at any time whilst in the service of the United
States, either as a civil or military officer, been a pensioner
of the Government of Spain, or corruptly received money from
that Government, or its agents; and that the said committee
have power to send for such persons and papers as may be
necessary to assist their inquiries; and that they report
the result to this House, to enable this House the better to
legislate on subjects of the common weal, and our foreign
relations, and particularly our relation with Spain, as well as
on the subject of the increase of the Army of the United States
and its regulations.
A motion to consider this resolution was negatived--60 to 46.
Mr. HOLLAND moved that a committee be appointed to wait upon the
President with the resolutions this day adopted.
Mr. LOVE moved that the evidence or information laid before the House
relative to the conduct of General Wilkinson be transmitted to the
Executive.
On motion of Mr. ROWAN, seconded by Mr. RANDOLPH, the words “copies of”
papers, &c., were inserted; and the resolution for transmitting copies of
the papers was agreed to without a division.
The motion for appointing a committee to wait on the President with
these resolutions and copies, was agreed to without a division. Messrs.
RANDOLPH and EPPES were appointed the committee.
FRIDAY, January 15.
_Government Contracts._
On motion of Mr. BASSETT, the House went into Committee of the Whole
on the resolutions submitted by him some days ago relative to the
contractors.
The first resolution being under consideration, as follows:
_Resolved_, That provision ought to be made by law to prohibit
the officers of Government from making any contract, on behalf
of the United States, with any person being a member of either
House of Congress, or with any other person for his or their
use:
Mr. BASSETT said he presumed that this proposition possessed sufficient
intrinsic merit not to require the aid of extensive talents or laborious
exertions of any gentleman to advocate it. He assumed it as an axiom,
that fundamental principles must rest for their security on the purity of
the Representative body. He should, however, trust the support of this
measure to its own importance.
The resolution was carried--59 to 15.
TUESDAY, January 19.
_Naturalization Laws._
Mr. BURWELL begged leave to offer a resolution to the consideration of
the House, on the subject of which it was not his intention now to make
any observations; it was upon the subject of the naturalization laws of
the United States. Upon examination of the constitution, it would be
found that Congress had now, since the 1st of January, 1808, full power
to act on the subject, and dispose of it in such manner as the public
good might require. It was now in their power to exclude foreigners from
the country altogether, or admit them under such restrictions as might
be deemed consistent with the public interest. He therefore hoped the
resolution would be agreed to, and give him an opportunity of introducing
such a bill as he contemplated, and on which the House might then decide.
The resolution is as follows:
_Resolved_, That a committee be appointed to inquire into the
expediency of amending the act of Congress, passed the 14th of
April, 1802, entitled “An act to establish a uniform rule of
naturalization, and to repeal the acts heretofore passed on
that subject.”
The resolution was agreed to, and Messrs. BURWELL, QUINCY, MACON, G. W.
CAMPBELL, SMILIE, FISK, and J. MONTGOMERY, were appointed the committee,
with leave to report by bill, or otherwise.
_The Militia._
On motion of Mr. M. CLAY, the House went into a Committee of the Whole,
on the bill more effectually to provide for the national defence by the
militia of the United States.
The first section being read, as follows:
“That all the militia of the United States, liable to do
duty, over twenty-one and under ---- years of age, shall be
deemed and held in requisition, and called the junior class of
militia. And the President of the United States shall be, and
he hereby is, authorized, on the appearance of national danger,
to order out the same, or any part thereof, to any part of the
United States or their Territories, for not more than one whole
year at any one time. And whensoever a part of the said junior
class shall, by the President of the United States, be called
into actual service, such call shall commence with those that
are lowest in number, as to age first, and so in rotation: the
same shall not be compelled to do duty a second time until the
whole of the said junior class shall have served one tour; and
when called into the actual service of the United States, they
shall be armed and equipped by the United States. For this
purpose two hundred thousand stand of arms complete, shall be
deposited in such places as the President of the United States
shall direct, and whensoever the whole, or any part of the said
junior class of militia, shall be called into actual service by
the United States, and shall be armed and equipped by the same,
it shall be lawful, and they, and each of them, are hereby
permitted to retain the said arms and accoutrements, as their
own property, any law to the contrary notwithstanding.”
Mr. M. CLAY said it was necessary to fill the blank in the first section,
before they proceeded any further, and it was incumbent on those who
were friends to this project, to show that there were defects in the
militia law as it now stood; and, if they could prove to the House
that the system offered was better than the old one, he presumed there
could be no objection to the bill under consideration. At all events he
wished gentlemen to take a serious view of the subject; it was a great
national question, on which the salvation of the country depended. He
would endeavor to bring forward the best testimony that could be had to
prove that the present system was defective, and he hoped he should be
able to do it. I will commence with the adoption of the constitution
under which we are now acting. We find that President WASHINGTON always
kept this subject in the view of the National Legislature. This shows
that there was something in his opinion to do; it was not his business
to tell us what it was, but ours to find out. If gentlemen will take up
the Presidential communications from the commencement of the Government,
they will find that the subject has been uniformly recommended by each
successive President of the United States to the present time. I state
this as a strong evidence that, in their opinion, a change was wanting
somewhere. Next to this I will call your attention to the communications
made from the State Executives to their Legislatures. We find also, that
the State Legislatures, almost every year, and in every session, have
had the subject under their consideration, and turned it over in one way
or the other. This proves that there is in their opinion some defect.
We must now remedy that defect if we can; it behooves us to do so; and
if I shall be fortunate enough to point out the propriety and mode of
making this alteration, I shall have done my duty. We will go further
back than the adoption of the constitution; we do not recollect the
whole body of the militia ever to have been brought into action to such
effect as our strength of numbers would have warranted, if the militia
had been properly organized; there was a defect somewhere, which should
be remedied without going either to one extreme or another. If gentlemen
will turn their eyes to the bill on the table, they will find that our
project is to steer between the two, not to harass the militia, but to
render them fit for efficient service, by taking only those that can be
best spared from home, and, when in actual service, can be most relied
on. History itself furnishes no instance, let the mode of warfare be
what it might, where the whole body of the militia were ever called into
actual service, and kept there for any length of time to advantage. If
there was much marching and fighting, the old men with families would
soon find the way home; they could not be relied on for a length of
time. I remember often to have heard this complaint made before the
Revolutionary war; when we were at war with the Indians. Nay, further, if
we go among the savages, we find that they do not all turn out to battle,
and leave their women and children only behind; they take neither old nor
young men, I mean their lads, to battle, but such only as may be useful
in the field.
When we recur to the times of the Revolution, which every old gentleman
recollects, and every young one has heard of, every one then in service
will attest the fact, that wherever the body of the militia were called
on to march, old and young together, the old men soon found their way
into the hospital; they would complain of old rheumatisms, &c.; they
would often fatigue and break down the young men by imposing on them the
additional burden of their knapsacks.
My object is to leave at home the senior and minor classes as much as
possible; nothing but imperious necessity and imminent danger should call
them to the field, and that within their own State, or in the neighboring
State. I wish not to derange the state of society, which must be the case
if the whole body of the militia are called out at once. During the last
war, we saw not only fields and neighborhoods, but whole States, laid
waste from being deprived of their cultivators. I wish to avoid this
evil; I wish to leave men enough at home to cultivate the earth and take
care of the crop. It is well known to gentlemen of the Revolution, that
while we lay at Valley Forge, in Pennsylvania, at Middlebrook, in New
Jersey, and at other places, we were almost in a state of starvation,
because all hands, meaning the whole body of the militia, had been
called out, and cultivation and manufactures neglected. I have seen (and
an awful sight it was) not less than five thousand men on parade at a
time, in the midst of winter, almost naked, without shirts or shoes;
of times have I seen them march on the frozen ground barefoot, marking
their footsteps with blood as they marched. At the times here spoken of,
the Army was reduced to the awful necessity of going into the adjacent
country and threshing out the grain from the straw, and, while thus
engaged, the poor and almost naked women, with their helpless babes
crying round them, would ask, with tears running down their withered
cheeks, for God’s sake not to take all, telling the soldiers that that
was their all, and when that was gone they must starve; that they had
no money, nor wherewith to get money. Now, my object is to avoid such
another scene--not only on this account, but in some of the Southern
States, we have an internal enemy, an enemy within our own families.
There should always be a sufficient force left at home to awe and keep
that enemy down. By taking out the junior class only, we shall always
have a sufficient number left to quell and keep down insurrection at
home. We shall presently show that we have a sufficient number of young
men under the age of twenty-six and over twenty-one, to meet the enemy
whenever they are called on. We have three great points of assault, New
York, Charleston, and New Orleans, and I shall I trust be able to show
that we have a sufficient number of young men of the junior class to keep
up a continual force, if necessary, to meet all attacks. It behooves me
now to show what disposition I intend to make of the minor class--young
men under twenty-one years of age. It is not my intention that they
shall be called into service, except in case of the utmost necessity,
and then only within their own State. We find, from report, that to be
the rock on which the Emperor of France has split. He takes his men when
in their infancy, from the age of eighteen. They ought to be left until
they are twenty-one, to lay in a sufficient stock of information to carry
them into life. Let them learn trades or attend to their studies; for
we consider the trade or profession which a man learns in his youth,
whether mechanical or mental, as a fortune; and therefore we do not wish
to interrupt them until they have completed their studies or trades,
except imperious necessity should require it. It is necessary that every
man should have somewhat from which he may receive subsistence during
his passage through life. During his minority he lays up by learning a
trade or profession, a principal, the interest of which supports him
after he attains the age of twenty-one. We also well know that young
men under twenty-one cannot stand hardship; they may do some service;
they may march about a little, but their system is not matured; they
cannot undergo fatigue. We also know that it will almost take two men of
eighteen years of age, each, to cope with one of twenty-five in bodily
strength.
We shall now proceed to show the numbers of each class, as nearly as they
can be ascertained from the census of 1800. We have taken the authority
of the best statistical writers for the progressive numbers.
The census of 1800 gave of males from twenty-six to forty-five,
432,193. I am not very particular as to fractions, they being of little
consequence. The annual increase from 1790 to 1800 was about three and
one-half per cent., which we will assume for the increase since the last
census, being seven years. This will give us an increase since 1800 of
105,882, which added to the number by the last census, makes 538,075.
From these deduct, unfit for service, as nearly as we can ascertain,
35,000 or 40,000. We have taken, for the sake of equal numbers, 38,075;
which leaves 500,000 men, who may be relied on if the danger should be so
great as to call for all men over twenty-six and under forty-five.
By the census of 1800, those over twenty-one and under twenty-six,
were between 190,000 and 200,000 men. To this add, for the increase
since, by the rule just laid down, 49,400; which will make 249,000,
under twenty-six and over twenty-one. Deduct from this number 8,000
or 9,000, for those unfit for service. For the sake of round numbers
deduct 9,000; which will leave 240,000 able men. We will suppose wanting
at any one time, 30,000 or 40,000 at each of the three great points I
have mentioned, which would still leave enough at home to supply the
succession and deficiencies. Out of this class of men, then, between
twenty-one and twenty-six, could be called out sufficient for service, at
any one time, from 90,000 to 100,000, and leave double that number still
in requisition. If, however, it should be thought that 240,000 would
not be a sufficient number, we have only to take all under twenty-seven
instead of twenty-six. Those between twenty-six and twenty-seven, added
to the others, would form a body of 280,000 men, without taking any
under twenty-one or over twenty-seven. It is about this time of life,
twenty-six or twenty-seven, when a man begins to know mankind; they
have then sown their wild oats, as we generally say; they then wish to
settle and see a family rising up before them; they feel vigorous, and
wish to show their activity and strength, in running, tumbling, and
wrestling; they think themselves great men; they wish to travel and see
the world; they have a roving disposition. This is the moment to lay
hold of them and make them good soldiers. I know well that it will be
said by some that it is an invidious distinction to stop at twenty-six
or twenty-seven. Why may not the same be said of stopping at forty-five
or beginning at eighteen? It is said that this classification will tear
up the old militia system. I do not care how soon it is plucked by the
roots; we have had enough of it. Why persist in a system which we cannot
get along with? What is the consequence? To show what that is, it is only
necessary to read the report of the Secretary of War. Under an exertion
of all the energies of the commanding officers, after the insult of the
22d of June last, on the Chesapeake; after the Executive officers had
exerted themselves to procure the best information upon the subject of
the militia held in requisition, what is the result? The report just
mentioned will show that you cannot rely with confidence on the militia
in its present state; nor can you on volunteers. The last will do for a
moment at the commencement of a war. In case of invasion they will do
very well for the moment. They do not go out with a view of brushing
their own coats, washing their shirts, and to cook their victuals; they
expect to call for the best of every thing at every house. Some gentlemen
volunteers went down lately to Norfolk from Petersburg and Richmond.
They conceived themselves on a level with the officers; it would not do;
they came home disgusted, and you will not get them to go again. What
was the case during the last war? When a large troop of volunteers was
raised (I know the fact, I had a brother among them, and can therefore
speak of it) they came prancing to General WASHINGTON. The old General
asked them what they could do? “Fight for our country,” said they. “Will
you go into camp with the Army and do regular duty?” They answered “No.”
“You have my thanks, then, gentlemen,” said the veteran, “go home again.”
This was only to make a show, they intended nothing else; they may do for
a moment; but there must be method and regularity in our Army. It will
not do to have a large body of men collected for any purpose without it.
And therefore it is, that as the great mass of our militia now stand, no
reliance can be placed upon them. It will not answer to rely on regular
troops. It is easy enough to raise a standing army, but it is difficult
to disband them. We had at the close of the last war an awful testimony
of the truth of this. Nothing but the vast weight of character of General
WASHINGTON, who, descending from his high office of Commander-in-chief,
mixed with them as a brother soldier, could have prevented them from
revolting. See what a clamor is now raised, and rumors afloat through the
country, about your standing army of 3,000 men. Get a man sufficiently
popular for Commander-in-chief of a large standing army, and what sort
of government should we soon have? We may shudder even to think of what
might be the result. Look at the contrary side, as now proposed to
regulate the militia. You take them from the bosom of their families for
one year. At the end of that term they will be anxious to return home.
Mutiny will not arrest them. With avidity they will return; a tear of joy
will bid them welcome.
Gentlemen say the bill does not give us detail sufficient. We can fix all
this when we have once passed upon the principle. This I repeat; nearly
one year has elapsed since the outrage committed on the Chesapeake, and
yet no return of volunteers or militia. This goes to show that volunteers
are not to be relied on, and also that the militia laws are defective.
I hope we have shown that we have strong reasons to suspect that the
present militia system is not the best that can be devised. We have
shown this from the best testimony in our power from the adoption of
the constitution to this day. From the communications of the President
of the United States to Congress, and from State Governors to the State
Legislatures, it may be seen that the subject has almost always been
introduced and recommended to the consideration of the Legislatures. If
this is not the best system that can be adopted, I am willing that any
gentleman should propose a better. Let us see any other system, we will
examine it thoroughly and act with our best judgment on it. This is a
time when the whole United States are in danger, and some modification of
our present system must be made.
Towards the close of the last war the militia began to fight very
well. In Kentucky the fighting men were numerous. After the attempt
of the army at the close of the war, to turn their arms against their
country, Government placed their soldiers when out of service on the
frontier, with the natives on their borders, with whom we were then at
war. Virginia gave lands to her soldiers which were in the background.
Why? Because it would not do to fix these men of seven or eight years,
standing among the body of the people. We will give them this land, said
the officers of Government, and let them go and fight the Indians. The
reason was, that they had served seven or eight years in the regular
army. This fungus, a standing army, was applied on our frontiers as a
breastwork and safeguard, to keep off the savages; we wanted to keep them
out of the way. We could have burnt up the Indian towns and put an end
to the whole race immediately; but we did not wish to do it; we wished
to keep our old soldiers fighting till they cooled off from the habit of
inactivity acquired by service in the war.
We have endeavored to show that volunteers will do but for a moment, and
that when there is nothing to do, and they can have both male and female
waiting upon them. They cannot be relied on in war. They are not the kind
of troops for service when invaded by a powerful enemy. Volunteers may do
for sailors or marines, if they choose to go to sea. We have endeavored
to show that classification is the only mode by which they can be relied
on for the real service of their country; that old men are not the best
for service; that young men under twenty-one ought to be kept at home
till they get enough of experience to serve them through life; and that
young men, over twenty-one and under twenty-six, have a propensity to be
in action, to serve their country and to acquire fame.
Some gentlemen make objections to the mode of officering. I have no
doubts upon that subject; the thing will work well--this the constitution
has reserved to the States themselves. When officers are wanting, young
men can always be found peculiarly qualified to conduct their companions
to the fight--young men of high standing and weight of character. The
soldiers, having themselves choice of their commander, will choose
one out of many candidates, as there always will be, in whom they can
confide. I presume, young men of first talents and enterprise will have
preference. Let them have a man to command them of their own age. They
will say one to the other, I know this man; I have known him from my
youth, and can confide in him.
As a reward for the services of these young men, after a campaign is
ended, let them keep as their own property the arms with which they
fought, which will be handed down from father to son: “This is the piece
I fought with.” Let it be engraven on the barrel, this belongs to such a
one, he earned it by serving his country at such a time. After men have
served one year, sufficient numbers will be found to replace them, who
will be anxious to see the country, and travel over the Union, emulous
of fame: and when they have served a tour will long to return to their
kindred, loaded with an honorable pledge of the service done their
country.
It is certainly a desirable thing that the physical strength of the
country should be applied in the most advantageous manner to the
protection of the country. We admit that some men marry early. In
this case let them hire men as substitutes from their own class. This
substitute may serve out his time and return. By that time another
young man may have married, and his substitute, being accustomed to
service, may go out a second term. By the adoption of this principle of
classification you get the best blood of the country, that which you can
rely upon. You will not see your hospitals filled with old men disabled
by the rheumatism and gout; nor will you see children in the ranks,
trembling at every leaf that falls around them, not sufficiently hardened
to lie out upon the ground covered with ice and snow. If we go on in the
same bungling manner as heretofore, we shall never have an efficient
militia; you will annually receive the President’s Message recommending
the subject to your consideration.
I hope gentlemen will think with me, and not impute impure motives--the
fact is, I have two sons that will soon be twenty-one, and I love them as
much as any man can, and perhaps can say what few can. The first property
I gave each of them was a gun; and have enjoined it on them in my will,
that it I was given them to defend that country which their father had
assisted in delivering from bondage. My son’s gun will impress on his
mind that he must fight when his country calls for his services; it is
his fortune.
I hope gentlemen will take a serious view of the subject--that every man
will lay his shoulder to the wheel, and rise up to the East and West,
South and North, to prepare for the protection of his domicil. Gentlemen
have said that this was a new project, that it will create confusion now,
when the service of our militia is most wanting. It is because of the
crisis that I have at this moment brought the matter forward. The present
system is acknowledged to be defective; we wish to make it as efficient
as possible--that our countrymen may know who must march at a moment’s
warning.
In Virginia, during the last war, young men, merchants, lawyers, and
doctors, went out to battle, stayed two or three weeks, took sick, and
went home. As long as every door was open, the hand of every man giving
them friendship, and caressed by every woman, they stood their ground;
but when dependence was placed on them for service, they were off. I
recollect a circumstance of some new militia just come into camp on the
eve of a battle. The time of battle soon came; these men were placed in
front; but no sooner did the redcoats, as they called the English, come
within one hundred yards, than they threw down their arms and ran as
though their lives depended altogether on their heels for preservation.
When they were asked, where are you going, boys? Did you ever see the
like, said they, we cannot stand them. When the redcoats come now it will
be just the same. Substitutes towards the close of a war become good
soldiers. I know that substitutes are objected to by some gentlemen,
they wish every man to stand in his own place, all to stand on the
same footing. In my humble opinion this would be bad policy, because
all men have not the same gifts. Some cannot fight, from religious
principles--others cannot fight for the want of nerve. The bill has made
provision for such, if they cannot fight let them furnish a substitute.
We know all men are not gifted alike: the strength of some lies in one
way, and in others another; Samson’s lay in his hair. Now on this floor,
some gentlemen of strong minds, who think a great deal, never talk; while
some who talk incessantly, appear never to think at all. It certainly
would be a great economizing of public time and money, for some to think
more and talk less. I am not in the habit of public speaking, not being
mechanically bred to it; I nevertheless offer my mite in support of
the proposed system. It is a great project; and although not fluent of
speech, yet I am willing to be tested by my votes and actions, from the
year 1776, the time I commenced my political career, to the present day;
and I defy any man to say that I ever gave other than a republican vote,
or did any other than a republican act, while acting as a public man. I
know the word republican is with some a hackneyed word; but I mean the
true electric principles of Republican Government. I went young into
the army myself, I was never out of it, after I entered it, until the
conclusion of the war. I have been thirty-two years in public life. I
mention this to show that I am entitled to claim a knowledge of mankind.
You may exercise your militia from the age of eighteen, till they arrive
at forty-five, and after the whole twenty-seven years mustering they will
not know the manual. My object is not to call out any man until he is
wanted; and when they are wanted, to call them out, and in one fortnight
they will be ready for service, and in a month may take the field,
already soldiers--comparatively speaking. There will attend this system
no expense in time of peace. I have seen a number of projects for taking
legions into camp for six months at a time. The project will not do.
When you take your men to the field, let them think of nothing else but
fighting--not even of women. These half-way soldiers, half regulars and
half militia, would be of no account. They would be a heterogeneous mass,
fit for neither the one thing nor the other.[56]
WEDNESDAY, January 20.
_General Wilkinson._
THE PRESIDENT’S ANSWER TO THE HOUSE RESOLUTIONS.
The Message from the PRESIDENT OF THE UNITED STATES was then read, as
follows:
_To the House of Representatives of the United States:_
Some days previous to your resolutions of the thirteenth
instant, a Court of Inquiry had been instituted at the request
of General Wilkinson, charged to make the inquiry into his
conduct which the first resolution desires, and had commenced
their proceedings. To the Judge Advocate of that court, the
papers and information on that subject, transmitted to me by
the House of Representatives, have been delivered, to be used
according to the rules and powers of that court.
The request of a communication of any information which may
have been received at any time since the establishment of the
present Government, touching combinations with foreign agents
for dismembering the Union, or the corrupt receipt of money by
any officer of the United States from the agents of foreign
governments, can be complied with but in a partial degree.
It is well understood that, in the first or second year of
the Presidency of General Washington, information was given
to him relating to certain combinations with the agents of a
foreign Government for the dismemberment of the Union; which
combinations had taken place before the establishment of the
present Federal Government. This information, however, is
believed never to have been deposited in any public office,
or left in that of the President’s Secretary; these having
been duly examined; but to have been considered as personally
confidential, and therefore retained among his private papers.
A communication from the Governor of Virginia to President
Washington, is found in the office of the President’s
Secretary, which, although not strictly within the terms of
the request of the House of Representatives, is communicated,
inasmuch as it may throw some light on the subjects of the
correspondence of that time, between certain foreign agents and
citizens of the United States.
In the first or second year of the Administration of President
Adams, Andrew Ellicott, then employed in designating, in
conjunction with the Spanish authorities, the boundaries
between the Territories of the United States and Spain, under
the treaty with that nation, communicated to the Executive
of the United States papers and information respecting the
subjects of the present inquiry, which were deposited in the
Office of State. Copies of these are now transmitted to the
House of Representatives, except of a single letter and a
reference from the said Andrew Ellicott, which, being expressly
desired to be kept secret, is therefore not communicated; but
its contents can be obtained from himself in a more legal form;
and directions have been given to summon him to appear as a
witness before the Court of Inquiry.
A paper “on the commerce of Louisiana,” bearing date
the eighteenth of April, one thousand seven hundred and
ninety-eight, is found in the office of State, supposed to have
been communicated by Mr. Daniel Clark, of New Orleans, then a
subject of Spain, and now of the House of Representatives of
the United States, stating certain commercial transactions of
General Wilkinson, in New Orleans; an extract from this is now
communicated, because it contains facts which may have some
bearing on the questions relating to him.
The destruction of the War Office by fire, in the close of one
thousand eight hundred, involved all information it contained
at that date.
The papers already described, therefore, constitute the whole
of the information on these subjects, deposited in the public
offices, during the preceding Administration, as far as has
yet been found; but it cannot be affirmed that there may be
no other, because the papers of the office being filed, for
the most part, alphabetically, unless aided by the suggestion
of any particular name which may have given such information,
nothing short of a careful examination of the papers in the
offices generally, could authorize such an affirmation.
About a twelvemonth after I came to the administration of
the Government, Mr. Clark gave some verbal information to
myself, as well as to the Secretary of State, relating to
the same combinations for the dismemberment of the Union. He
was listened to freely; and he then delivered the letter of
Governor Gayoso, addressed to himself, of which a copy is now
communicated. After his return to New Orleans, he forwarded to
the Secretary of State other papers, with a request that, after
perusal, they should be burnt. This however was not done; and
he was so informed by the Secretary of State, and that they
would be held subject to his orders. These papers have not yet
been found in the office. A letter therefore has been addressed
to the former Chief Clerk, who may, perhaps, give information
respecting them. As far as our memories enable us to say, they
related only to the combinations before spoken of, and not
at all to the corrupt receipt of money by any officer of the
United States; consequently they respected what was considered
as a dead matter, known to the preceding Administrations, and
offering nothing new to call for investigations, which those
nearest the dates of the transactions had not thought proper to
institute.
In the course of the communications made to me on the subject
of the conspiracy of Aaron Burr, I sometimes received
letters, some of them anonymous, some under names true or
false, expressing suspicions and insinuations against General
Wilkinson. But only one of them, and that anonymous, specified
any particular fact, and that fact was one of those which had
been already communicated to a former Administration.
No other information within the purview of the request of the
House, is known to have been received by any Department of
the Government, from the establishment of the present Federal
Government. That which has been recently communicated to the
House of Representatives, and by them to me, is the first
direct testimony ever made known to me, charging General
Wilkinson with the corrupt receipt of money; and the House
of Representatives may be assured that the duties which this
information devolves on me, shall be exercised with rigorous
impartiality. Should any want of power in the court to compel
the rendering of testimony obstruct that full and impartial
inquiry, which alone can establish guilt or innocence and
satisfy justice, the legislative authority only will be
competent to the remedy.
TH. JEFFERSON.
JANUARY 20, 1808.
The said Message, together with sundry documents accompanying the same,
were read, and referred to Mr. JOHN MONTGOMERY, Mr. NICHOLAS, Mr. UPHAM,
Mr. SMILIE, Mr. TAYLOR, Mr. G. W. CAMPBELL, and Mr. JEDEDIAH K. SMITH,
with instructions to report thereon by bill, or otherwise.
[The following are the documents communicated with his Message
by the President:]
WAR DEPARTMENT, Jan. 2, 1808.
In compliance with a request from Brigadier-General James
Wilkinson, the President of the United States has directed
a court of inquiry to be instituted, for the purpose of
hearing such testimony as may be produced in relation to the
said General James Wilkinson’s having been, or now being, a
pensioner to the Spanish Government, while holding a commission
under the Government of the United States.
Colonel Henry Burbeck, as President, Colonel Thomas H. Cushing
and Lieutenant-Colonel Jonathan Williams, as members, are
hereby directed to meet at the city of Washington, on Monday,
the 11th day of the present month of January, as a court of
inquiry, for the purpose above stated; and, after a full
investigation of such evidence and circumstances as may come
to their knowledge, the court will report to this Department a
correct statement of its proceedings, together with its opinion
on the amount of testimony exhibited.
Walter Jones, Esquire, District Attorney for the District
of Columbia, will be requested to act as Judge Advocate or
Recorder to the court.
H. DEARBORN, _Secretary of War_.
Col. HENRY BURBECK, _President Court of Inquiry_.
* * * * *
RICHMOND, May 31, 1790.
SIR: The enclosed copy of a letter from the Spanish Governor of
New Orleans to a respectable gentleman in Kentucky, was handed
to me by Mr. Banks of this city. As the subject of this paper
appears interesting to the United States, I have taken the
liberty to forward it to you.
I am, with the highest respect,
Your most obedient servant,
BEVERLY RANDOLPH.
* * * * *
NEW ORLEANS, Sept. 16, 1789.
SIR: General Wilkinson having represented to me, that you had
it in contemplation to settle in this province, and that your
example would have considerable influence on many good families
of your country, I think it my duty, in order to forward the
intentions of my royal master, to inform you that I shall
receive you and your followers with great pleasure, and that
you have liberty to settle in any part of Louisiana, or any
where on the east side of the Mississippi below the Yazoo
river. In order to populate the province, His Majesty has been
graciously pleased to authorize me to grant to the emigrants,
free of all expense, tracts of from two hundred and forty to
eight hundred acres, in proportion to their property; and in
particular cases of men of influence, who may aid these views,
I shall extend the grant as far as three thousand acres. To
all persons who actually become settlers, liberty is granted
to bring down their property in the produce of your country,
duty free; but the King does not agree to take your tobacco,
and, of consequence, you must depend upon the common market
of this city, as the province makes more than the quantity
which the King allows me to take. I mention this particular to
prevent disappointment. You will be exempt from taxation, and
will be allowed the private exercise of your religion without
molestation from any person whatever, and will enjoy all the
rights, privileges, and immunities of His Majesty’s other
subjects.
In order to cultivate an amicable connection with the settlers
of the Ohio, His Majesty has been graciously pleased, at the
same time, to give liberty to the inhabitants of that country
to bring down their produce to this city for sale, subject to
a duty of fifteen per cent, on the value here; but to prevent
imposition, and to distinguish between the real settler and
the trader, the former, on entering their produce at the
custom-house, will be obliged to subscribe to the conditions
mentioned in the proclamation, of which General Wilkinson
carries a copy for your information.
Though unknown to you, General Wilkinson has taught me to
respect your character.
It is, therefore, I subscribe myself, with great esteem, your
most obedient and humble servant,
ESTEVAN MIRO.
BENJAMIN SEBASTIAN, Esq., Kentucky.
Attest: S. COLEMAN, _A. C. C._
* * * * *
NATCHEZ, June 17, 1796.
MY DEAR FRIEND: I received your favor of the 12th instant, in
which you give me a proof of your sincere friendship by opening
your heart, without reserve, on the interesting subject of the
treaty. Following the same sentiments that have dictated to you
the confidence that you have in me, I shall unreservedly, and
in the most confidential manner, give you my opinion on the
same subject.
I have powerful reasons to believe that the part of the
treaty concerning limits will never be accomplished; and for
that reason so little has been said on what otherwise should
be detailed concerning the subjects and citizens of both
countries. The State of Georgia is as much displeased as you
express yourself, and several petitions have already been
presented to Congress against the treaty.
In the time that the treaty was signed, the political affairs
of Europe determined our Court to do any thing to keep the
United States in a perfect neutrality, and thereby destroy a
new plan that was forming to renew and continue a destructive
war. The treaty with England had a different object. It was to
attract the Americans to their interest in such a manner as
to have still in her power to keep them dependent; the plan
has fallen through, and the British will no longer deliver
the posts. Our treaty that was made to counterbalance that,
will suffer equal difficulties; for the circumstances being
altered, so will be the conditions on every side. Spain made
a treaty with the Union; but if this Union is dissolved, one
of the contracting parties exists no longer, and the other is
absolved from her engagements. It is more than probable that a
separation of several States will take place, which will alter
the political existence of a power that could influence on the
balance of that of others; therefore Spain, being deprived of
that assistance which could arise from her connection with the
Union, will alter her views. This is the political situation of
things with regard to the treaty; besides that, there are other
insurmountable difficulties with respect to the _Indians_,
which render impracticable the execution of the part concerning
limits; therefore, even when no change should happen in the
United States, the treaty will be reduced to the navigation of
this river.
Laying aside every obstacle, and only guided by the same
principles that have affected you, I have already represented
in the strongest and most energetic manner on the subject of
real property; without a solution from Court, it will be out
of our power to fulfil the contents of the treaty. When I told
you that your property should not suffer in this Government,
it was founded on all these principles, and several others
that are not vanished. I have constantly been a friend to the
country, and in this critical moment will not neglect its
interests. Be sure, and assure all your neighbors, that I will
do the needful, and that my exertions at all times shall be in
proportion to the exigency.
With regard to the debts of this Government, they will continue
to be paid in the manner prescribed; however, I shall act
in such a manner as to have them cleared much sooner than
what is expected. Every individual of this Government is
just now attending their crops of cotton, that promise very
advantageously; therefore in this critical moment they must not
be disturbed, or they will suffer essentially. I am waiting
anxiously for Mr. Dunbar to regulate several things in which
he has had, and is to have an interference. I really believe
that the Baron has him employed. I do not know for certain when
the Baron is to go to the Havana, nor do I believe that he
knows it. The first packet may perhaps throw some light on the
subject. The return of our Court to Madrid will be productive
of some very great change in the administration of our affairs;
therefore I wait that moment with impatience.
Nothing can affect the mortgage you have on Fuly’s property; he
has not yet appeared, but Mr. Ree acts for him.
I remain, with the most sincere friendship, my dear friend,
your most obedient,
M. GAYOSO DE LEMOS.
Reserve this letter.
P. S.--In the other letter I express the reason of my new
regulation, &c.
DANIEL CLARK, Esq.
* * * * *
_Extract from a paper on the commerce of Louisiana, supposed
to be referred to in a letter from Mr. Daniel Clark to the
Secretary of State, of the 18th April, 1798, and written by
him._
About the period of which we are now speaking, in the middle
of the year 1787, the foundation of an intercourse with
Kentucky and the settlements on the Ohio was laid, which daily
increases. Previous to that time, all those who ventured on the
Mississippi had their property seized by the first commanding
officer whom they met, and little or no communication was kept
up between the countries. Now and then, an emigrant who wished
to settle in Natchez, by dint of entreaty, and solicitation of
friends who had interest in New Orleans, procured permission to
remove there with his family, slaves, cattle, furniture, and
farming utensils; but was allowed to bring no other property,
except cash. An unexpected incident, however, changed the
face of things, and was productive of a new line of conduct.
The arrival of a boat, belonging to General Wilkinson, loaded
with tobacco and other productions of Kentucky, is announced
in town, and a guard was immediately sent on board of it.
The General’s name had hindered this being done at Natchez,
and the commandant was fearful that such a step might be
displeasing to his superiors, who might wish to show some
respect to the property of a general officer; at any rate, the
boat was proceeding to Orleans, and they would then resolve on
what measures they ought to pursue, and put in execution. The
Government, not much disposed to show any mark of respect or
forbearance towards the General’s property, he not having at
that time arrived, was about proceeding in the usual way of
confiscation, when a merchant in Orleans, who had considerable
influence there, and who was formerly acquainted with the
General, represented to the Governor that the measures taken
by the Intendant would very probably give rise to disagreeable
events; that the people of Kentucky were already exasperated at
the conduct of the Spaniards in seizing on the property of all
those who navigated the Mississippi; and, if this system was
pursued, they would very probably, in spite of Congress and the
Executive of the United States, take upon themselves to obtain
the navigation of the river by force, which they were well able
to do; a measure for some time before much dreaded by this
Government, which had no force to resist them, if such a plan
was put in execution. Hints were likewise given that Wilkinson
was a very popular man, who could influence the whole of that
country; and probably that his sending a boat before him,
with a wish that she might be seized, was but a snare at his
return to influence the minds of the people, and having brought
them to the point he wished, induce them to appoint him their
leader, and then, like a torrent, spread over the country, and
carry fire and desolation from one end of the province to the
other.
Governor Miro, a weak man, unacquainted with the American
Government, ignorant even of the position of Kentucky with
respect to his own province, but alarmed at the very idea of
an irruption of Kentucky men, whom he feared without knowing
their strength, communicated his wishes to the Intendant that
the guard might be removed from the boat, which was accordingly
done; and a Mr. Patterson, who was the agent of the General,
was permitted to take charge of the property on board, and to
sell it free of duty. The General, on his arrival in Orleans
some time after, was informed of the obligation he lay under to
the merchant who had impressed the Government with such an idea
of his importance and influence at home, waited on him, and, in
concert with him, formed a plan for their future operations.
In his interview with the Governor, that he might not seem to
derogate from the character given of him by appearing concerned
in so trifling a business as a boat-load of tobacco, hams, and
butter, he gave him to understand that the property belonged
to many citizens of Kentucky, who, availing themselves of
his return to the Atlantic States by way of Orleans, wished
to make a trial of the temper of this Government, as he, on
his arrival, might inform his own what steps had been pursued
under his eye, that adequate measures might be afterwards
taken to procure satisfaction. He acknowledged with gratitude
the attention and respect manifested by the Governor towards
himself in the favor shown to his agent; but at the same
time mentioned that he would not wish the Governor to expose
himself to the anger of his Court by refraining from seizing
on the boat and cargo, as it was but a trifle, if such were
the positive orders from Court, and that he had not a power
to relax them according to circumstances. Convinced by this
discourse that the General rather wished for an opportunity of
embroiling affairs than sought to avoid it, the Governor became
more alarmed. For two or three years before, particularly
since the arrival of the Commissioners from Georgia, who had
come to Natchez to claim that country, he had been fearful
of an invasion at every annual rise of the waters, and the
news of a few boats being seen was enough to alarm the whole
province. He revolved in his mind what measures he ought to
pursue (consistent with the orders he had from home to permit
the free navigation of the river) in order to keep the Kentucky
people quiet; and, in his succeeding interviews with Wilkinson,
having procured more knowledge than he had hitherto acquired
of their character, population, strength, and dispositions,
he thought he could do nothing better than hold out a bait to
Wilkinson to use his influence in restraining the people from
an invasion of this province till he could give advice to this
Court, and require further instructions. This was the point
to which the parties wished to bring him, and, being informed
that in Kentucky two or three crops were on hand, for which,
if an immediate vent was not found, the people could not be
kept within bounds, he made Wilkinson the offer of a permission
to import, on his own account, to New Orleans, free of duty,
all the productions of Kentucky, thinking by this means to
conciliate the good will of the people, without yielding the
point of navigation, as the commerce carried on would appear
the effect of an indulgence to an individual, which could be
withdrawn at pleasure. On consultation with his friends, who
well knew what further concessions Wilkinson could extort
from the fears of the Spaniards, by the promises of his good
offices in preaching peace, harmony, and good understanding
with this Government, until arrangements were made between
Spain and America, he was advised to insist that the Governor
should insure him a market for all the flour and tobacco
he might send, as in the event of an unfortunate shipment,
he would be ruined whilst endeavoring to do a service to
Louisiana. This was accepted. Flour was always wanted in New
Orleans, and the King of Spain had given orders to purchase
more tobacco for the supply of his manufactories at home than
Louisiana at that time produced, and which was paid for at
about $9.50 per cwt. In Kentucky it cost but $2, and the profit
was immense. In consequence, the General appointed his friend
Daniel Clark his agent here, returned by way of Charleston in
a vessel, with a particular permission to go to the United
States, even at the very moment of Gardoqui’s information; and,
on his arrival in Kentucky, bought up all the produce he could
collect, which he shipped and disposed of as before mentioned;
and for some time all the trade for the Ohio was carried on in
his name, a line from him sufficing to insure to the owner of
the boat every privilege and protection he could desire.
On granting this privilege to Wilkinson, the Government
came to a resolution of encouraging emigration from the
Western country, and offered passports to all settlers, with
an exemption of duty on all the property they might bring
with them invested in the produce of the country they came
from under the denomination of settlers. All those who had
acquaintances with a few persons of influence in Orleans
obtained passports, made shipments to their address, which were
admitted free of duty, and, under pretence of following shortly
after with their families, continued their speculations. Others
came with their property, had lands granted them, which,
after locating, they disposed of, and, having finished their
business, returned to the United States. A few only remained
in the province, and they were the people who, in general,
availed themselves least of the immunities granted by the
Government. They possessed a few slaves and cattle, but had
little other property, and they generally settled among their
countrymen in the Natchez, and increased the cultivation of
tobacco, at that time the principal article raised for export
in the district. This encouragement given to emigrants and
speculators opened a market for the produce of the Ohio. Flour
was imported from Pittsburg; and the farmers finding a vent for
all they could raise, their lands augmented in value, their
industry increased, and they exported annually to Louisiana,
for some time past, from ten to fifteen thousand barrels of
flour, for which they generally find a ready market. When the
first adventurers began to purchase, flour was to be had for
from eighteen to twenty shillings, Pennsylvania currency, per
barrel, on the Monongahela, but was of a very bad quality, and
was only made use of for biscuit, or in times of scarcity. It
gradually improved, and in 1792 the best kind was supposed
equal to that manufactured in Philadelphia; but, being put up
negligently, does not keep so long, and for that reason alone
is not so much esteemed as Philadelphia flour.
The Court of Spain, informed by its officers here of the
steps they had taken, and the motives which had induced them,
otherwise ignorant of the situation of affairs with respect to
Kentucky, and consequently easily impressed with the ideas they
wished to inculcate, not only approved of what they had done,
but granted a further permission to all the inhabitants of the
Western country to export their produce to Orleans, where it
was admitted on paying fifteen per cent. duty. This increased
the intercourse, as many who would not before adventure, while
it was a matter of favor granted by the Governor, now entered
into commercial speculations; and, from the Ohio, the province
of Louisiana was not only supplied with a sufficient stock of
flour, whiskey, and salted provisions, hemp, and, latterly,
cordage, but a considerable quantity of some of them often was
shipped from hence, as the produce of this province, to Havana
and other Spanish ports; besides these articles, the produce
of their lands, dry goods were secretly imported, and sold in
the different ports along the river; and, although orders were
given to the commandant of New Madrid, the first Spanish port
below the mouth of the Ohio, to prevent such importations,
and seize on all who transgressed these orders, it was easily
avoided. Here the boats gave a manifest of their cargo, under
which a passport was given; this was endorsed by the different
commandants on the river as the boats passed; the owners might
sell their cargoes where they pleased, and by the manifest
which they were bound to deliver to the Government immediately
on their arrival at New Orleans, their duties were calculated.
These duties continued to be exacted at the rate of fifteen
per cent. until after the arrival of the Baron de Carondelet,
when, under the idea of facilitating certain political ideas
of his own, he reduced them, on his own authority, to six per
cent. This measure was highly disapproved of by Gardoqui, the
Minister of Finance, who threatened to make him personally
responsible for the difference, and ordered the duties to be
placed on the former footing. The Baron, who was not easily
diverted from a favorite measure, paid no attention to the
Minister’s first orders; he represented a second time, and
again received a more positive order than the first. Despairing
of being able to gain his point with him, and determined not
to abandon it, he addressed himself to the King, through the
Minister of State. His plans were approved of, and the duty
fixed at six per cent., at which rate it still subsists: and
this is the duty exacted on every thing imported from any of
the American settlements on the Ohio or Mississippi for sale
in New Orleans. This duty is far from being burdensome to the
importer, on account of the low rate of estimation, and the
facility with which, by various means, a considerable part of
it is always avoided. Flour is valued but at four dollars a
barrel; first quality tobacco, three dollars per hundredweight;
other quality, two dollars; whiskey, thirty-seven and a half
cents per gallon; and salt provisions and all other articles
at a reasonable rate, as may be seen in the tariff which
accompanies this, according to which the duties are calculated,
and which naturally fall on the consumer. By degrees the
importation of flour from the Ohio has almost put a final stop
to any from the Atlantic States, and we shortly expect that
such quantities will be manufactured in the Western country,
as to permit the merchant of Orleans to enter into competition
with those of the Middle States at foreign markets. The
quantity of different productions imported from the Ohio since
the opening of that trade has varied considerably from year
to year. In the beginning, tobacco was the principal export
from Kentucky, and, at one period, from one thousand five
hundred to two thousand hogsheads came down the Mississippi
annually for three or four years; they, at the same time,
exported a great quantity of butter, lard, and salt provisions.
Within the last three years, the exportation of tobacco has
considerably diminished, and flour seems to take its place.
Hemp has likewise been imported from thence in considerable
quantities; was formerly reshipped from hence to the Atlantic
States, but what now comes is manufactured here. Cordage is
likewise imported from Kentucky, where some rope-walks are set
up; and, in future, it is to be presumed that little or no
hemp will be exported from New Orleans: for the encouragement
of the manufactory here, that article is exempt from duty on
importation. In the year 1792, the King ceased purchasing the
usual quantities of tobacco in Louisiana, which was formerly
two millions of pounds, on account of some frauds in packing,
and the general bad quality of the tobacco, as the planters,
sure of having theirs received by the inspectors, on giving
a small gratuity, made generally three cuttings, and put up
every thing that ever looked like tobacco. This punishment
was sensibly felt, as a great price was given for it, say
nine dollars and a half per hundredweight. This culture
ceased immediately on the eastern side of the Mississippi on
this event taking place. The people of Natchez turned their
attention to indigo, which they raised with success; but
changed this branch for that of cotton, which now forms the
staple article of their growth, and bids fair to be an object
of the greatest importance; the crop of last year from that
district is supposed to exceed three thousand bales, of two
hundred and fifty pounds each, and the average price has been
twenty cents per pound.
* * * * *
NATCHEZ, June 4, 1797.
SIR: As it is probable that this will reach you before my
despatches of the 27th of last month, by way of New Orleans, I
have enclosed duplicates.
About seven days ago, twenty-five Spanish soldiers arrived at
this place, where they continued one night, and then proceeded
up to the Walnut Hills. On the 28th of May, I received a letter
from Governor Gayoso, No. 1, to which I replied on the 31st,
No. 2. From Governor Gayoso’s letter, it appears that the Baron
de Carondelet is not well satisfied with his conduct; they are
at this time not on good terms, and the breach has been widened
by the artful management of a certain Mr. Power, now at this
place, who was last season intriguing in the State of Kentucky
for the Spanish Government; he is particularly patronized by
the Baron. The transactions which the Baron alludes to, I
suspect, are the arrangements I made with Governor Gayoso,
by which the troops of the United States were brought into
this district with his consent and apparent approbation. The
difficulty of getting them away is now obvious both to himself
and the Baron, and as it was done without consulting the
latter, he feels an inclination to condemn the conduct of the
former.
It is now reported by the Spaniards that a Minister
Plenipotentiary has been sent by the Court of Madrid to the
United States to inform our Executive that the country and
posts now held by His Catholic Majesty on the east side of the
Mississippi, above the thirty-first degree of North latitude,
are not to be given up until a general peace takes place in
Europe, and that, from the uniform pacific disposition of the
United States there can be no doubt of his success. This report
is credited but by few.
The citizens of the United States, who are trading on the
Mississippi, are frequently treated with great insolence at
the Spanish posts, and their property taken for the use of His
Catholic Majesty, when wanted, and always at a reduced price.
About three weeks ago, a cargo of flour, consisting of between
three and four hundred barrels, was taken at the Walnut Hills
from a Mr. McCluny, of Washington County, in the State of
Pennsylvania, against his will, to be paid for in New Orleans
at such price as the officers of Government see proper to give,
which is generally three dollars per barrel less than the
current price in market. A few days ago Mr. Francis Baily, a
citizen of the United States, who had lately come on here with
some goods, had a tender of a commissary’s certificate payable
at the treasury in New Orleans, which species of paper was
passing at a discount of twelve per cent.; Mr. Baily declined
taking the certificate as payment for the debt, and appealed
to Governor Gayoso for redress, who immediately decreed that
the tender was legal. These cases are not singular; they are
particularized because both the gentlemen mentioned will be in
Philadelphia in the course of a few weeks, and I expect will
make a point of substantiating the facts--both cases being a
violation of the late treaty between His Catholic Majesty and
the United States.
From the jealous and suspicious disposition of the Spaniards,
I do not think it possible that any treaty or compact can be
lasting between that nation and our Western people, while the
former have any possessions on the east side of the Mississippi.
Dr. Watrous is now here. He was on his way from Fort Hamilton,
on furlough, to the State of Connecticut, but Captain Pope and
myself prevailed upon him to stay with us, until we have some
intelligence respecting our continuance in this country.
I am, sir, with great esteem and respect, your friend and
humble servant,
ANDREW ELLICOTT.
Hon. SECRETARY OF STATE.
P. S.--At the moment I was folding this, the enclosed
proclamation, No. 3, by the Baron de Carondelet, was put into
my hands. The various and contradictory reasons assigned by the
Spanish officers for their delay in carrying the late treaty
into effect, are too obvious to need a comment.
A. E.
* * * * *
NATCHEZ, June 5, 1797.
SIR: I have this moment received private information that
Mr. Power, who I have mentioned to you in my communication
of yesterday, is, by order of the Baron de Carondelet, to
proceed immediately through the wilderness, to the State of
Kentucky. There is every reason to believe that his business
is to forward the views of Spain, by detaching the citizens
of Kentucky from the Union. It has been hinted to me that Mr.
Power will, in the first instance, pay a visit to General
Wilkinson, who, we are informed, is now in Cincinnati.
I am, sir, your obedient servant,
ANDREW ELLICOTT.
Hon. SECRETARY OF STATE.
* * * * *
DARLING’S CREEK, November 8, 1798.
SIR: On the 10th of last month, having opened the boundary
between the United States and His Catholic Majesty, from the
Mississippi River to the thin pine country, we ceased carrying
the line on in that accurate scientific manner in which it was
begun, and from the end of the line, designated in the report
which accompanies this, the work will generally be done with
a common surveying compass, and corrected at the different
navigable water-courses which it may happen to cross.
The line mentioned in the report is opened sixty feet wide, and
passes through a country impenetrable to any but Americans. The
labor has been equal to what would in our country have opened
at least one hundred miles. The business, it is evident, will
not go on with that rapidity we could wish; nothing, however,
will be wanting on our part, and I think it will be completed
the ensuing season. Governor Gayoso has evidently been brought
into a co-operation very reluctantly, and certainly has no
desire of having it pushed. Mr. Power, a gentleman well known
for his intrigues in Kentucky and other parts of the United
States, is the surveyor on the part of the Crown of Spain; he
has attended but one week on the line, and I do not believe
that he will attend another, during the execution of the work.
He has, however, employed a deputy, who is Mr. Daniel Burnet,
the same person who carried Mr. Hutchins’s papers to Congress
last winter; he has yet behaved very well. The others employed,
Major Minor excepted, are of little consequence, except to
disorganize and talk politics. The acting commissary is a Mr.
Gensack; he was taken by the British at the Cape, and carried
to Jamaica, from whence he made his escape to the United
States, where he found safety, but, in the true character of
his nation, he equally hates both Americans and British: he
is sullen, reserved, and intriguing. There are no Spaniards
concerned in the business, and but a few of the common
soldiers. Major Minor and Mr. Burnet are Americans; the others,
including the laborers, are generally French, or descended from
French ancestors, or Roman Catholic Irish. When I look over
this strange heterogeneous collection, I cannot help asking
this question: “Can the Spaniards really be serious in carrying
the treaty into effect?” If they are, it is very extraordinary
that there is not one of that nation employed above the rank of
a common soldier.
I have always been of opinion that it was a happy circumstance
for both countries that Major Minor was appointed Commissioner
on behalf of the Crown of Spain; his prudence and sound
judgment will, in all probability, enable us to carry the work
through, which I am confident would not have been the case,
had Mr. Power been appointed to that trust, as was proposed by
Governor Gayoso, and to which I pointedly objected, as did Mr.
Dunbar also.
If our surveyor had been a man of prudence and talents, our
difficulties would have been much less; but his want of
information, extreme pride and ungovernable temper, constantly
furnish the opposite party with weapons. He has insinuated
that the work is erroneous, and that Major Minor and myself
have combined to injure both Governments, and wantonly lavish
away public money. He himself has been the only idle person
on the side of the United States; his whole attendance on the
line as surveyor would not exceed one week. His insinuations,
I am confident, would have but little weight with the people
of the United States, but the case is very different with
the Spaniards, naturally jealous, and uninformed in science,
particularly so far as it relates to astronomical operations.
On Friday, the 12th of last month, General Wilkinson arrived
at our camp, and continued with us until Sunday, the 14th.
We had much conversation on the state and situation of the
country; his ideas respecting both appeared very correct so
far as I was able to determine. He informed me that he had
seen some of Mr. Freeman’s correspondence with Captain Guion,
which, in his opinion, came fully within the meaning of the
late sedition law; and recommended, in the most serious manner,
that he should be immediately suspended from his employment
on the line. This, added to the opinion of Governor Sargent,
(who spent a number of days at our camp,) Colonel Bruin, and
many other respectable gentlemen, determined me in taking that
measure. The surveying at present is done by Mr. Gillespie,
the chain-carrying by Mr. Ellicott and Mr. Walker. General
Wilkinson has removed Mr. McClary from the command of my
escort; his conduct was far less exceptionable than that of Mr.
Freeman, and when he did err it was generally the effect of bad
advice.
Mr. Freeman left our camp on the 30th September, at the very
time we were changing our system of carrying on the work, and
in which the compass only is used, without giving me any notice
of his departure, that arrangements might be made to meet the
want of a surveyor. He was absent until the evening of the 17th
ultimo, and on the morning of the 18th he was furnished with a
note of suspension. He has constantly conducted himself in that
same independent way.
The reference, No. 9, which was in cipher, in my communication
of the 14th of November last, contained an account of an
extraordinary plan; but that plan, in my opinion, is now given
over, and the knowledge obtained of the country, its strength,
and the disposition of the inhabitants, will be turned to
the advantage of the United States by some of the principal
characters concerned. It is the best they can now do. That
the plan is given over may be collected from No. 1, which for
particular reasons is in cipher, and ought to be secret. It
cannot be considered as a literal translation, which you will
see by the introduction, but it conveys accurately the ideas
contained in the letter from which it is extracted.
The plan of Baron de Carondelet, mentioned in my communication
of 27th of June last year, was correct as there stated; the
particulars I have since obtained, and will be detailed to you
by a gentleman, in the course of a few months, who was in the
secret of the whole business. That you may not be at a loss
when that gentleman calls upon you, he will have a letter of
introduction from me, with an official communication, and a
number of questions in the same cipher with reference to No.
1. His answers to those questions will convince you that my
information has constantly been correct.
I shall leave this place (where I have only halted to draw
up this communication) to-morrow, and proceed to the Pearl
River, where the guide line will be corrected. I shall then
proceed down the river to Lake Maurepas, from thence into
Lake Pontchartrain and to New Orleans, where I expect to
arrive about the 1st of January next. From New Orleans I shall
follow the coast to Mobile, and again correct the guide line
as run by the surveyors. From Mobile I shall follow the coast
to Pensacola; I shall pursue the coast to the Chatetucka,
and ascend the river to the guide line; as soon as that is
corrected, I shall proceed to the mouth of Flint River and from
thence to St. Mary’s.
You will easily perceive that my design in following the coast
is to obtain an accurate knowledge of its situation, the
navigation of the different rivers we shall have to ascend,
and to correct the geographical positions where it may be
necessary. My map of the Mississippi, corrected by a great
number of observations, is now made out in the rough, and
ready for copying.
The astronomical observations which I have made since I
left Philadelphia, will make a large and not uninteresting
publication.
Our business now goes on with the greatest harmony. That part
near the coast, in which, as an American and friend to my
country, I feel myself the most interested, will be nearly
completed before Mr. Freeman can join us, if the President
should disapprove of the measures which have been taken with
him; and in that case I must request the favor of being
permitted to return home. All that his friend General Mathews,
Colonel Pannell, and a few others, can say of him, must be
negative evidence; they may say what he has done; but what
they say he has done in forwarding our business must be from
his own report. They have not been visitors at our camp, where
the only information founded upon facts could be had. He has
not made a single observation since we came into this country,
though he endeavored, after my course at the beginning of the
line was furnished, one whole week without success. He is,
nevertheless, by General Mathews and Colonel Pannell, declared
not inferior to Newton! This is not strange; they may possibly
have less scientific knowledge than he has, and the solemn
air and dictatorial manner of a professional schoolmaster may
have contributed much to establish his character with them.
His abuse of me I disregarded, till his caballing got into
the camp; the consequences then became more serious, and the
measure which I took was founded upon the best of motives--the
service of my country, _and I have but one_, added to a
natural desire to live in peace with all mankind. I have but
few observations to add to the depositions respecting his
conduct which are forwarded with this. Mr. Robins, one of the
deponents, is superintendent of the laborers, and always with
them. Mr. Collins, another of the deponents, is as worthy a man
as any in the United States, and assistant to Mr. Anderson; he
constantly resides in the laborers’ camp. Mr. Lindsey likewise
resides in the camp; he is a gentleman of veracity, and agent
for the contractor. These gentlemen have been with us from the
commencement of the business to the present time, and perfectly
acquainted with the conduct of Mr. Freeman, and superior to his
art, which he frequently exerted with them in vain. Similar
depositions to those forwarded might be obtained from the
gentlemen of the Spanish camp, but it appeared to me improper.
You will see I have omitted taking those of Mr. Gillespie and
the chain-bearers; it might be said they were interested. And,
as Mr. Anderson has been equally abused with myself, on that
account his has not been taken. You will see by the depositions
that I rise early: it is generally before the break of day;
from that time until dark I rarely sit down one hour; after
candle-light I am generally engaged until 10 o’clock in writing
and arranging my observations.
I hope the citizens of the United States begin by this time
to be weaned from their attachment to the French nation. For
my part I have experienced so much want of principle and
integrity among them, and their partisans in this country, both
individually and collectively, that my prejudices against the
whole nation are so strong, that it is with difficulty I can
guard my expressions so as not to give offence.
The arrival of General Wilkinson has created considerable alarm
in the Spanish colonies below, and Governor Gayoso has directed
that the militia within his Government he immediately armed.
The fears and jealousies of the Spanish nation will certainly,
in the course of a few years, occasion the loss of all the
country on this side of the Mississippi, to the Crown of Spain.
The whole of my correspondence on various subjects, since
my communication of the 29th of July last, would make a
large volume, and as there is but little of it immediately
interesting to the United States, I shall only refer you to
Nos. 2, 3, 4, and 5.
I am sensible you will perceive a great want of arrangement in
this communication; but at the same time I am equally so that
you will excuse it, when I assure you that the whole packet,
except Mr. Clark’s letters and the correspondence with Governor
Gayoso, is the work only of two nights and one day, and that in
the woods, without any other table than a small instrument box,
the weather cold and windy, and all my young men who used to
aid me in copying many miles ahead on the line.
I am sorry that the report mentioned in the beginning of this
is not forwarded; my part has been done some time, but the
Spanish part is not yet ready, owing to the absence of Mr.
Power. I shall write to you again from New Orleans. In the mean
time, believe me to be, &c.
ANDREW ELLICOTT.
Hon. SECRETARY OF STATE.
P. S. Daniel Clark, Esq., of New Orleans, has lately spent a
number of days with me in my camp; from him I have received
much valuable information, which it will be unnecessary for me
to detail, as he will give it to you himself in Philadelphia
the ensuing winter. He intends to visit that city immediately
after our interview in New Orleans.
There is not a gentleman of literature or science, and scarcely
one of respectability in this country, with whom I have not
been upon the most intimate footing ever since I came into it;
and every attack that has been made upon me has arisen either
from envy or misconception, to which I should never have paid
any attention had the principles of opposition not entered our
camp, and begun to embarrass our business.
A. E.
* * * * *
[Communicated to the House, February 4, 1804.]
_To the House of Representatives of the United States_:
In my Message of January 20th, I stated that some papers
forwarded by Mr. Daniel Clark of New Orleans to the Secretary
of State, in 1803, had not then been found in the office of
State, and that a letter had been addressed to the former
chief Clerk, in the hope that he might advise where they
should be sought for. By indications received from him they
are now found. Among them, are two letters from the Baron de
Carondelet, to an officer serving under him at a separate
post, in which his views of a dismemberment of our Union are
expressed. Extracts of so much of these letters as are within
the scope of the resolution of the House are now communicated.
With these were found the letters written by Mr. Clark to
the Secretary of State, in 1803. A part of one only of these
relates to this subject, and is extracted and enclosed for the
information of the House. In no part of the papers communicated
by Mr. Clark, which are voluminous, and in different languages,
nor in his letters, have we found any intimation of the
corrupt receipt of money by any officer of the United States
from any foreign agent. As to the combinations with foreign
agents for dismembering the Union, these papers and letters
offer nothing which was not probably known to my predecessors,
or which could call anew for inquiries, which they had not
thought necessary to institute, when the facts were recent, and
could be better proved. They probably believed it best to let
pass into oblivion transactions which, however culpable, had
commenced before this Government existed, and had been finally
extinguished by the Treaty of 1795.
TH. JEFFERSON.
FEBRUARY 4, 1808.
Extract of a letter from the Baron de Carondelet, dated
NEW ORLEANS, July 10, 1796.
I suppose, sir, that you are now at the Bluffs, and in
possession of a command which requires firmness, vigilance,
conciliation, and prudence, as well with regard to the savages
as to the Americans; for the evacuation of that important
post is not yet so certain as not to admit of doubt, at least
so long as the savages remain attached to us. Besides, it is
proper to keep in view that the neighboring States, that is
to say, Kentucky and Tennessee, are interested that it should
remain in our power, for political reasons which cannot be
trusted to paper. You must, of consequence, keep them in those
sentiments, by treating their inhabitants, to whom the liberty
of the navigation is granted, with kindness and regard. Let
the friendship of the Chickasaws and the satisfaction of the
Americans who navigate the river, be the basis of your conduct;
as for the rest, I have not yet received any official news from
the Court concerning the treaty, which we know nothing of but
through the American gazettes.
All the appearances of an approaching peace in Europe have
vanished; but it is probable that we shall not have war with
the English. Fourteen French ships of the line, with ten
thousand men, are actually to take possession of the Spanish
port of St. Domingo; and France and Spain appear more united
than ever. The Spanish inhabitants have lost their slaves.
Extract of a letter from the Baron de Carondelet, dated
NEW ORLEANS, Sept. 12, 1796.
In answer, sir, to your private letter of the 10th of last
month, I will acknowledge to you that I was under the belief
that the Fort of St. Ferdinand was badly constructed, but not
to the degree that you point out to me. You must, however,
without augmenting the expenses which its evacuation would
render useless, put it in a state to maintain yourself there
until I receive new instructions from the Court. Should the
Court think proper, as may very well happen, not to evacuate
our posts on the Mississippi, I will despatch a courier to you
in all haste, that you may change the situation of the fort,
which ought to be done with all diligence, and so as that it be
again sufficiently intrenched to prevent its being surprised or
attacked before it is in a state of defence; for this purpose
I will send immediate and secret orders to New Madrid and to
St. Genevieve, that carpenters, masons, &c., should instantly
be sent to you, and you may also count on a reinforcement of
troops, which I will send to you by the galley Philapa, which I
am causing to be rebuilt without noise; all these dispositions,
I repeat to you, ought to be prompt and secret. I expect the
answer of the Court in ----.
If His Majesty, on the contrary, should persist in it that the
evacuation of the forts must take place, it will be done in the
most simple mode, towards the commencement of January. In the
mean time you must prepare the minds of the Chickasaws, and
of the inhabitants of Kentucky and Tennessee, for one or the
other of these events. You ought to make the latter understand
that their natural interest leading them to separate at some
day (_un jour_) from the Atlantic States, the occupation of
our posts on the Mississippi by the troops of the latter could
not but be disastrous to them, since they would cut off all
communication between them and us, from whom alone they could,
in that case, hope to receive assistance.
Extract of a letter from Daniel Clark to the Secretary of
State, dated
NEW ORLEANS, March 8, 1803.
As a proof that expectations of assistance from ourselves
against our own Government have been always relied on by the
Spaniards, and that they have constantly looked to a division
of our Western States from the General Government, I now
forward you an order to receive from Washington Morton, Esq.,
of New York, a sealed packet which I left in his possession
when I set out for Europe, and which I then mentioned I
would show you at my return, not thinking, at that time,
that circumstances would occur so soon as to render the
disclosure a measure of immediate necessity. Among other
papers of less importance in this packet, is a small part of
the correspondence of the Baron de Carondelet with the officer
commanding Fort St. Ferdinand, at the Chickasaw Bluffs, in
which he suffers his plans and views to be clearly perceived,
and which were solely aimed at our destruction; the remainder
are, as well as I recollect, copies of talks and letters to and
from the Chickasaw Indians; and, by the Baron de Carondelet’s
letter to the officer, you will perceive that the fact I
advised you respecting the annual pension of five hundred
dollars to Uguluycabé cannot be disputed.
Should you think these documents of sufficient importance to
require my presence in Washington to elucidate any part of
them, I shall immediately sacrifice all private business of my
own, and hasten there; and, in the mean time, will endeavor
to collect, from undoubted sources, such other information
relative to this subject as may be acceptable.
Although for four or five years past I had a perfect conviction
that the intrigues of the Spaniards with the Western country
were not for the time dangerous, on account of the incapacity
of the Governors of this province, and their want of pecuniary
means, yet, fearful of what might happen in future, should
more enlightened and ambitious chiefs preside over it, I could
not last year resist the temptation of hinting my suspicions
of what had been formerly done in this way to the President
at an interview with which he honored me, and I even went so
far as to assert that a person supposed to be an agent from
the State of Kentucky had been here in the end of 1795 and
beginning of 1796, to negotiate on the part of that State,
independent of the General Government, for the navigation of
the Mississippi, before the result of the Treaty of St. Lorenzo
was known, wishing that this hint might induce the President,
to cause inquiry to be made into the circumstance, which he
could easily find the means of investigating; but as he made
no other inquiry of me respecting it than merely in what year
the thing happened, it struck me that he must have had other
information on the subject, and that he thought it needless
to hear any thing more about it. By great accident I have
lately learned something which induces me to suppose that any
information he may have received respecting the measure alluded
to has been incorrect, and given with the view of misleading
him, and I request you will mention the subject anew to him,
that you may know how far I am right in my suspicions. The
information I possessed on the subject, could not, from the way
in which it was obtained, be accompanied with what would be
proof to convict the person concerned, or I should have openly
accused him in the face of the world; but to me it amounts to a
moral certainty of his guilt, and my conduct to him showed, on
all occasions, how much I detested his object and his person.
The same want of proof positive, sufficient to convict him,
prevents me at present from naming him; but if inquiry is
diligently made about the influential character from Kentucky,
who at that period was so long in Natchez, and afterwards here,
what his business was, and what was the idea entertained of
him, enough will doubtless be discovered to put our Government
on its guard against him and others of his stamp, and against
all foreign machinations in that quarter in future.
Communicated to the House, April 25, 1808, by Daniel Clark.
Pursuant to the resolution of the House, calling on me for
testimony relative to General Wilkinson’s receipt of money
from the Spaniards, I now lay before it some original papers,
corroborating the statement which I have already given:
No. 1. The first is the translation of a letter, in Spanish,
from Thomas Power to D. Thomas Portell, dated at New Madrid,
June 27, 1796, and containing the reasons why it was proper
for Portell to deliver to Power, without an order in writing
from General Wilkinson, a sum of money which had been placed
for that purpose in Portell’s hands by the Spanish Government
of New Orleans. The original letter is subjoined in the
handwriting of Mr. Power, with which I am acquainted.
This letter explains the deposition of Derbigny, and also makes
mention of the letter in cipher from General Wilkinson to
Gayoso, then Governor of Natchez, of which a translation, in
the handwriting of Gayoso, has heretofore been laid before the
House. It may be proper to add that I am well acquainted with
the handwriting of Gayoso, in which the translation is written,
and that he has been dead more than eight years.
No. 2. A translation of Portell’s answer to the foregoing,
dated Madrid, on the same day, June 27, 1796. The original
is subjoined in the handwriting of Portell, with which I am
acquainted.
The object of this correspondence seems to have been to furnish
to Portell the means of explaining to his superiors his motives
for delivering the money without a written order.
Nos. 3 and 4 are two original papers in the handwriting of
Philip Nolan, with which I am well acquainted. Nolan was the
confidential agent of Gen. Wilkinson in 1796, and has been dead
several years.
These two papers are stated by Mr. Power to be secret
instructions given to him by General Wilkinson, after the
latter received money from Portell, mentioned in Nos. 1 and
2. The instructions, according to Mr. Power’s statement, were
given in the handwriting of Nolan, as a measure of precaution
against the danger of detection. The six hundred and forty
dollars, of which they make mention, are stated by Mr. Power to
be a part of the sum received, for Wilkinson, of Portell, which
Power, after his arrival in Kentucky, was obliged to use for
the expenses of his journey.
No. 5. Is the translation of a letter to the Baron de
Carondelet from Mr. Power, dated at New Orleans, May 9, 1797,
after his return from Kentucky. The original letter in Spanish
is subjoined. It is in Mr. Power’s handwriting, with which I am
acquainted. It explains the affair of the six hundred and forty
dollars, mentioned in the secret instructions, Nos. 3 and 4,
and refers to and quotes those instructions as the instructions
of General Wilkinson.
No. 6. Is the translation of the Baron de Carondelet’s
answer to this letter. The answer is in Spanish, and in the
handwriting of Don Andres Armesto, Secretary to the Government,
which I know. It is signed by the Baron de Carondelet, with
whose signature I am acquainted.
DANIEL CLARK.
No. 1.
Translation of a letter from Thomas Power to Don Thomas
Portell, Commandant of New Madrid, dated
NEW MADRID, June 26, 1797.
Having received verbal instructions from Mr. James Wilkinson,
the American General, to take charge of the money, which, by
a letter, he received from the Secretary of the Government,
Don Andres Armesto, under date of 7th or 8th of March last,
of which I was bearer, he has advice, is deposited in this
post, and being informed by the official letter which you have
received on this business from the Governor General of the
Province, of which you will be pleased to furnish me a copy,
that said money is not to be delivered without an express order
from the said Mr. Wilkinson, I find myself forced to relate
circumstantially some particulars to smooth and remove the
difficulty which the want of a written order on the part of the
aforesaid General Wilkinson presents. Although this relation
may appear an abuse of the confidence with which the Governor
General of the Province and the Governor of Natchez, and
particularly General Wilkinson, have honored me, I am persuaded
that the urgency of the case which offers will serve me as an
excuse and justification.
You are not ignorant of the fact, that Don Manuel Gayoso
de Lemos being here in the month of September, of the
year last past, he intrusted to me some despatches of the
greatest importance for General Wilkinson, which I carried
to Cincinnati, and I returned with the answers in the month
of November. By order of the said Don Manuel Gayoso, I made
immediately another journey to the Ohio, and I ascended it to
Red Bank in search of Sebastian, who came with me to the mouth
of the Ohio, where we met with the Governor of Natchez. At the
end of December, I accompanied this gentleman to Natchez, and I
went thence to New Orleans.
The principal object of my going down was to take charge, by
order of General Wilkinson, of the money which you have now in
deposit for him, which is shown by the letters which he wrote
to the governors of this province and of Natchez; but, at my
arrival, the money had been already sent off in one of His
Majesty’s galleys, for this place, which I learned from the
Baron de Carondelet, the Intendant, and Don Andres de Armesto.
I repeatedly treated on this business with the two last of
these persons, urging forcibly the necessity of sending sugar,
coffee, and powder, to New Madrid, to form a cargo to take to
Kentucky with Wilkinson’s money, hiding, by this means, the
true intention of the voyage, and giving it the appearance
of a commercial speculation. All this Wilkinson had before
represented as indispensable for many reasons, particularly in
order to avoid a misfortune similar to that which had already
occurred. At last the Secretary told me that the barge in
which Mr. Aaron Gregg, the American officer, was to go up, was
destined for this service, and that as for the crew, he would
permit me to choose among the Creoles, residents in this post,
those who might appear to me most worthy of confidence, so that
I left New Orleans with the belief that at my return to this
post I should find every thing disposed conformable to what I
have just related. On arrival at Greenville, informed General
Wilkinson of the steps which had no doubt had been taken, from
whence has resulted, that he, like myself, was impressed with
the belief that all the measures for executing this service
with success had been taken. I cannot communicate all the
motives why Wilkinson has not given me an order in writing;
but one of them was, that he did not know the sum of money
which you had to deliver to his order, the Governors not having
written a word to him on the subject, the Secretary only saying
that his money was deposited in New Madrid, without expressing
the sum. In the letters in cipher, from General Wilkinson for
the governors, which are here enclosed, he tells them that he
has sent me to bring the aforesaid money, informing you that
the No. 1 is for the Governor General of the Province, and the
No. 2 for Don Manuel Gayoso. I will add that General Wilkinson,
when I represented to him that on presenting myself without
his order in writing, some difficulty might arise, authorized
me, if the case required it, to write an order that you should
deliver his money, specifying the sum there might be, signing
it in his name, and giving you a receipt therefor. I cannot
omit that the commission of General Wilkinson was so sudden,
so urgent, that it was extended even to limiting my return to
my destination by the first of August, of which I advise you
that you may endeavor not to delay the service. I believe that
the Governor General is not ignorant of the embarrassments of
General Wilkinson, nor can he be ignorant that, for a long time
past, he has been expecting this money, the delay of which
has been the cause of much trouble to him, involving him in
great difficulties; and I can assure you, confidently, that he
will be very much disgusted with any delays in the expedition,
which might be productive of serious injury. As for the mode
of carrying the money, it is evident that to take it openly
would be too scandalous a thing, if I were not to say that it
would be madness. The unhappy result of the expedition of the
unfortunate Henry Owen ought to serve as a beacon in order
not to lose ourselves on the same rock, and to make us take
another course less dangerous. I would wish you to put a bag of
one thousand dollars in a barrel of coffee or sugar, so that
although the difference of the respective gravity, between
silver, sugar, and coffee be very great, the quantity being
so small, it will not be easily known. It will likewise be
prudent to carry some barrels without money in order to sell
them before arriving at Cincinnati, if it should so happen that
any one should offer to buy these goods, because not to sell
them when it might be done to advantage would excite suspicion;
and to complete the disguise it would be well to take a certain
quantity of powder and rum. If these dispositions should appear
defective, I beg you to make such changes as may be to your
mind. God preserve you many years.
No. 2.
Translation of a letter from Don Thomas Portell to Mr. Thomas
Power, dated
NEW MADRID, June 29, 1796.
Having well considered the contents of your letter of this
day, I mention that I agree in every thing to the whole of
the reflections you place before me; although at first sight
it appears that I ought to wait the decision of the Governor
General, as he prescribes to me in his official letter of the
20th of January of the present year, and of which I enclose you
a copy, which you request of me. The circumstances which you
expose are such, that they leave me nothing more to do than to
tell you to forward me a memorandum of the number of pounds
of coffee, sugar, barrels in which to fill the powder and rum
you desire for your expedition, because, as soon as I receive
it, I will get it ready as you desire, informing you that for
the merchandise you must sign me an acknowledgment of having
received it, and for the money a receipt as attorney of General
Wilkinson.
In order that the barge may be ready, and as you may want it,
I have written an official letter to the Lieutenant-colonel
Vincente Folch, that he may send it as soon as possible,
because as nothing was said to me of what you have now
mentioned respecting it, Mr. Francis Langlois asked it of me
for an affair of service, and took it loaded with corn to the
Fort of San Fernando, and it has not been returned, although
I have required it, thinking it might be wanted here; Don
Vincente Folch having answered me, that if I had not orders to
keep it, there were none to return it.
The two letters in cipher remain in my hands, which I shall
forward by the first safe opportunity, with the distinction
you point out, No. 1 to the Governor General, and No. 2 to the
Governor of Natchez.
As for packing the money and arranging the barrels, as soon as
they are ready, between you and myself, all this may be done
without any one else acquiring a knowledge of it. God preserve
you many years.
No. 3.
Instructions from Gen. Wilkinson to Thomas Power.
To proceed to Galliopolis: to make application and propositions
to the leading characters there to induce them to move to
New Madrid, with all the French of that settlement; to urge
this point in such measure as to attract the attention of the
public officers there, whose report to the Executive will
immediately follow, and will account for his frequent missions
to that place: to return as rapidly as possible; to load with
flour and proceed without a moment’s delay to New Orleans; in
the route to see Newman, and to enter on the subject of his
desertion; to inform him of the facts which have transpired,
and the opinions prevalent; to urge his return, as the request
of all his friends; to assure him of safety, and of such reward
as he may demand; also that being pardoned for the imputed
offence, no further process can lie against him for the same;
that the oath which he was suborned to take, being made while
in duress, is in itself a nullity, and cannot be offered in
crimation of him; it will be necessary that he should take down
his examination, founded on the interrogations furnished him;
and if they prove material to the crimination of Wane and his
associates, then he must embark N----n under a fictitious name
at New Orleans for Philadelphia; and having arrived there, must
lodge him in some retired place, and call upon me, under cover
of the night, for further advice. You will hear of me at ----.
If N----n cannot be prevailed upon to return under dispositions
favorable to my views, then let his declaration on oath be
circumstantially taken to all the points enumerated in the
interrogations, in the presence of Dr. Flowers, Colonel Bruin,
Daniel Clark, or any three or four of the most notorious, and
of the most respectable Americans of the Natchez district. Let
these gentlemen certify to two copies, and to the original,
and let them be transmitted to me through different channels.
P. to take charge of the original. Mr. P. must take with him
credentials from the Government of Louisiana, acquitting him of
any political connection or agency injurious or hostile to the
interests of the United States. He must carry to Philadelphia
testimonials of his family and character, addressed to as many
of the native respectable merchants of that city as possible:
these may be readily procured from New Orleans and the Havana.
It is indispensable that P. should meet me in Philadelphia; for
the rest let him rely on my friendship and address. To collect
from Bradford every information respecting the Pittsburg
insurrection, which may be employed, should it be found
necessary, to disgrace certain persons: to bear no paper about
him which carries my name upon it.
No. 4.
Employ the six hundred and forty dollars, _avec le cargaison_,
to pay expenses and lay in a cargo of best flour _pour la
ville_, where it will help to reimburse. In making your
settlement, take care to secure me the six hundred and forty
dollars advanced, and bring them with you. I have urged
peremptorily the necessity of your presence at the metropolis.
Bring me N----n, if, upon examination, you find his presence of
more consequence than his deposition, when taken as directed.
I believe he was caused to desert by O’Hara: probe him to that
point. You are to bring me papers, but my name is not to be
written or spoken. You must do the needful below to detect and
expose past treachery or indiscretion, and to prevent either
in future. I have referred particularly on this head. I shall
expect you impatiently. Should I continue where I am I shall
wish you near me. If I cross the water, you are to accompany:
bring every credential of family and fortune to repulse the
insinuations of ----. Trust something to my address, and put
faith in my honor and affections to the grave.
No. 5.
Letter from Thomas Power to the Baron de Carondelet, dated
NEW ORLEANS, May 9, 1797.
Enclosed your Excellency will receive the documents relative
to my last confidential expedition, made by your Excellency’s
order, on the Ohio, of which I have already given you a
narrative, as well verbal as in writing. The remarks which
follow will serve for its elucidation.
I left New Madrid with ten oarsmen and a patron; the provisions
which were delivered to the crew were, biscuit for a month;
meat for a month; rum for fifteen days.
To disguise, as far as possible, the true object of the
expedition, we had hired the people under the same conditions
as are common in commercial voyages, so that the monthly
rations allowed by the King did not even last fifteen days. The
reason why I issued to the crew two extraordinary allowances of
liquor daily, counting from the day we left Red Bank until our
arrival at the falls of Ohio, was to encourage them to row with
vigor, that Lieutenant Steel, whom I thought in pursuit of me,
might not again take me, because, had I fallen into his hands a
second time, I was lost. As respects the one hundred and fifty
dollars, for the horse which I bought to make the journey from
Frankfort to Cincinnati, and the expenses which accrued on
this journey, they were indispensable for a double motive: to
carry my complaint against Steel, for having offered so great
an insult to our flag, and to give advice of my arrival to the
American General, Mr. James Wilkinson, that he might take the
necessary measures. I have to add that, the motive which has
induced me to dispose of the merchandise which I received of J.
and A. Hunt, in exchange for the coffee and sugar, was to give
credit to the opinion which I myself had raised, that I had
come to purchase horses to take to Natchez, in order to better
the breed in that district. Besides this, as the occurrence
with Steel had awakened suspicions, excited apprehensions,
and attracted the attention of the inhabitants of the Western
country, all had their eyes directed on me, so that I found
myself obliged to do something which should please them, that
it might serve me as a safe conduct to quit those parts, which
by the this means I happily effected. The mare, of which
statement No. 1 makes mention, was lost on my arrival at New
Madrid in the woods, where she died of thirst, the excessive
frosts having entirely frozen up the waters. The stud-horse I
delivered on going down to Don Manuel Gayoso de Lemos, but he
returned him to me a short time since, and I have him carefully
kept until your Excellency is pleased to make some disposition
respecting him. Of the sum of $9,640, which I was to deliver to
Mr. James Wilkinson, I have only delivered him nine thousand,
having retained the six hundred and forty dollars to avoid the
unfortunate result with which I was threatened, and likewise to
provide what was necessary for the crew during the voyage. The
following are the documents which are enclosed:
No. 1. The account sale of the merchandise, laden, &c.
No. 2. Account of the expenses for the crew.
No. 3. Account and expenditure of the six hundred and forty
dollars.
No. 4. Statement which shows in what manner the merchandise has
been made use of.
No. 5. Statement which shows what is due to me.
No. 6. Invoice of J. and A. Hunt.
All which are accompanied with the obligation of Mr. N. Welch
for one hundred and five dollars, and the two receipts of
Mr. Boyd, the one for four hundred and sixty-six dollars and
two-thirds, for the value of a horse; the other for two hundred
dollars, for the value of a mare. The balance which appears in
my favor, according to the statements Nos. 3 and 4, as well as
the account of my monthly pay for fourteen months, I beg your
Excellency will be pleased to direct that it should be remitted
to me, or delivered to Mr. Philip Nolan, to whom I have given
advice on the subject.
Mr. James Wilkinson, in the instructions which he has given me,
directs that I should present to your Excellency the account of
the expenses to which the six hundred and forty dollars have
been applied, (and I have done so in the statement No. 3,) that
he may be reimbursed said amount. The instruction says, “in
making your settlement take care to secure me the six hundred
and forty dollars advanced, and bring them with you.” Although
he charged me to take them to him to the United States, I am
of opinion that no one is better suited to remit them than
Mr. Philip Nolan, as your Excellency has now resolved that I
should remain in this province; your Excellency will please to
suffer me to assure you that in every particular I have acted
with prudence, with honor, and the disinterestedness of an
honest man, as well as with the zeal and fidelity which the
King’s service requires, and with the vigilance and activity,
[here there is a line unintelligible.] I deserve nothing and
expect nothing for having fulfilled the obligations of a good
subject to His Majesty, unless your Excellency will be pleased
to procure me opportunities of displaying the inclination I
feel of sacrificing myself for the prosperity of my country and
glory of my Sovereign.
God preserve your Excellency many years.
THOMAS POWER.
No. 6.
Answer to the foregoing, dated
NEW ORLEANS, May 28, 1797.
There remain in my hands the six documents relative to the
account of the last expedition which you made on the Ohio, and
which you enclosed to me in your official letter of the 9th
instant, and they are as follows:
No. 1. Account sales of the effects laden at New Madrid.
No. 2. Another of the expenses of the crew.
No. 3. Account of the expenditure of the six hundred and forty
dollars.
No. 4. Statement which shows how the merchandise has been
employed.
No. 5. Statement which shows the balances due to you, &c.
No. 6. Original invoice of J. & A. Hunt.
On account of it there will be delivered to you one thousand
dollars, that you may make preparations for your journey in the
new commission which I intrust to your care.
It is necessary to see how you can get rid of the horse with
the least possible loss, as well as to recover the debt of
Nicholas Welch, or have it recovered, for which purpose I
enclose you his obligation; and likewise the proceeds of
the merchandise, which, to the amount of three hundred and
fifty-three dollars, you delivered to Don Pedro Derbigny, in
order to give an account to the Court without these balances,
which cause trouble and appear speculations, when they are no
more than the effect of necessity, and the difficulty which
these commissions cause in places where there are no resources,
when you have to deceive the vigilance of spies.
As you finish these matters, and as soon as your present
commission is fulfilled, you will give me advice.
God preserve you many years.
BARON DE CARONDELET.
To THOMAS POWER.
THURSDAY, January 28.
Mr. SOUTHARD, one of the members for the State of New Jersey, informed
the House of the death of his colleague, Mr. EZRA DARBY, late one of
the members of this House: Whereupon, the House came to the following
resolutions:
_Resolved_, That a committee be appointed to take order
for superintending the funeral of EZRA DARBY, Esq., late a
Representative from the State of New Jersey.
_Resolved, unanimously_, That the members of this House will
testify their respect for the memory of EZRA DARBY, Esq., late
one of their body, by wearing crape on the left arm for one
month.
_Resolved, unanimously_, That the members of this House will
attend the funeral of EZRA DARBY, Esq., on to-morrow at twelve
o’clock.
_Resolved, unanimously_, That a message be sent to the Senate,
to notify them of the death of EZRA DARBY, late a member of
this House, and that his funeral will take place on to-morrow,
at twelve o’clock; and that the Clerk of this House do go with
the said message.
_Ordered_, That Mr. SOUTHARD, Mr. MASTERS, Mr. PORTER, Mr. HELMS, Mr.
NEWBOLD, and Mr. LAMBERT, be appointed a committee, pursuant to the first
resolution.
SATURDAY, January 30.
_Removal of Federal Judges on the Address of Congress._
Mr. G. W. CAMPBELL.--It has always been my opinion that in a free
Government like ours, every department ought to be responsible for its
conduct. The Constitution of the United States was evidently framed on
this principle, and the preservation and security of the rights and
liberties of the citizens and the due execution of the laws will be found
to rest, in a great degree, on rendering public agents sufficiently and
practically responsible for their conduct to the nation. That this is
not the case with the Judiciary of the United States has been proved by
experience. Your judges once appointed are independent of the Executive,
the Legislature, and the people, and may be said to hold their offices
for life. They are removable only on conviction by impeachment of high
crimes and misdemeanors, and this mode of proceeding has been found in
practice totally inefficient, and not to answer the purpose for which it
was intended--that of rendering your judges duly responsible for their
conduct. They may therefore be considered as independent of the rest of
the nation, (and they seem to think so themselves,) as if this provision
in the constitution, relative to impeachment, did not exist. No matter
how erroneous their opinions--how dangerous to the public weal--how
subversive of the interest of the people--how directly opposed to the
laws of your country; yet, as it is neither a high crime nor misdemeanor
to hold erroneous opinions, which they seem conscientiously to believe,
they cannot be removed by impeachment--they are independent of the rest
of the nation.
This subject has attracted the attention of the people in most of the
States. The Legislatures of several States have passed resolutions
declaring the necessity of amending the Federal Constitution, so as to
render the judges, in practice as well as in theory, responsible for
their conduct. The most numerous branch of the Legislature of the State
which I have the honor to represent in part, have declared their opinion
in favor of such amendment. In order, therefore, to bring this subject
before the House, that the sense of the National Legislature may be
ascertained thereon, I submit the following resolution:
_Resolved, by the Senate and House of Representatives of the
United States of America, in Congress assembled, two-thirds of
both Houses concurring therein_, That the following amendment
to the Constitution of the United States be proposed to the
Legislatures of the several States, which, when ratified by
the Legislatures of three-fourths of the said States, shall
be valid to all intents and purposes, as part of the said
constitution: The Judges of both the Supreme and Superior
Courts of the United States shall, after the ---- day of ----,
be removed from office by the President of the United States,
on the joint address of both Houses of Congress requesting the
same, three-fifths of each House concurring in such address.
This resolution was referred to a Committee of the Whole on the state of
the Union.
MONDAY, February 1.
Another member, to wit, GEORGE CLINTON, junior, from New York, appeared,
produced his credentials, was qualified, and took his seat in the House.
MONDAY, February 22.
_Captain Pike._
Mr. J. MONTGOMERY observed, that to Captains Lewis and Clarke, who had
explored the Western country, a compensation had been made; he held in
his hand a similar resolution for remunerating Captain Pike for the
important services he had rendered on an almost similar expedition, which
he proposed, as follows:
_Resolved_, That a committee be appointed to inquire what
compensation ought to be made to Captain Pike and his
companions for their services in exploring the Mississippi
River, and in their late expedition to the sources of the
Osage, Arkansas, and La Platte Rivers, together with their tour
through New Spain; and that they have leave to report by bill
or otherwise.
Mr. MARION objected to the phraseology of the resolution, as sanctioning
a general principle, to which he was not prepared to assent. The
resolution did not go to inquire if any compensation, but what
compensation, should be given; thus taking it for granted that some
remuneration should be made. Mr. M. wished it to be so modified as to
inquire “if any, and, if any, what,” compensation should be granted.
Mr. MONTGOMERY acceding to this alteration, the resolution was adopted.
WEDNESDAY, February 24.
_Removal of Judges upon Address from Congress._
Mr. WHITEHILL presented the resolutions of the Legislature of
Pennsylvania, requesting their members in Congress to use their endeavors
to procure an amendment to the Constitution of the United States, so
that the Judges of the United States should hold their offices for a
term of years, and be liable to removal by the President, on the joint
address of a majority of both Houses of Congress; and that, on trials by
impeachment, a majority of the Senate should be competent to conviction.
Mr. BARD moved to refer the resolutions to the Committee of the Whole on
the state of the Union.
Mr. DANA opposed the motion. The resolutions were only instructions to
the Pennsylvania delegation. This House had nothing to do with them.
After a debate of about two hours, the question was taken and
carried--yeas 82, nays 27.
MONDAY, April 4.
A new member, to wit, ADAM BOYD, returned to serve in this House as a
Representative for the State of New Jersey, in the room of EZRA DARBY,
deceased, appeared, produced his credentials, was qualified, and took his
seat in the House.
TUESDAY, April 12.
_Frauds in Land Warrants._
Mr. RANDOLPH rose to give notice that he meant to bring forward a motion
on a subject of considerable public interest, and in which in his
opinion the honor of the Government of the United States was materially
implicated. He held in his hand an application from a veteran soldier on
the subject of his bounty land, and who had sent him a power of attorney
to act for him--a man of unimpeachable character, and who had not been at
the seat of Government since it was established--his name William Bryan.
I found, said Mr. R., that his warrant, No. 9--, has been drawn and
fraudulently located; I say fraudulently, because I am well assured that
the party has not received any advantage from the warrant, and there is
the strongest evidence of fraud. His warrant has been drawn and located,
by whom I cannot discover; my researches were completely baffled by the
memorable fire, which it is presumable owed its origin to a desire to
cover frauds of this nature. I was referred from the War Office to the
Treasury Office; for the only chance of finding out who had acted as
attorney in fact for this old man, was, that the warrant ought to have
been returned and on file there. On going there I found that the space on
the record which the warrant ought to have occupied, was blank; and that
no such warrant exists on the Treasury files. I believe this is far from
being a solitary case, but that the cases are numerous, and many of those
who have honestly earned a title to public land have been in this way
defrauded, and the land sold to speculators who have reaped the benefit
of it. I therefore give notice that I shall at a future day move for an
inquiry into this subject.
_Suspension of the Embargo._
The House then resolved itself into a Committee of the Whole, 55 to
20, on the resolution offered by Mr. G. W. CAMPBELL, declaring that
the President of the United States ought, in the event of certain
contingencies occurring during the recess of Congress, to be authorized
to suspend the operation of the embargo.
Mr. G. W. CAMPBELL said he would state to the House, in a very brief
manner, some of the reasons which induced him to bring forward this
resolution.
It will be recollected, said he, that the causes which induced the
passage of the law, imposing an embargo, were the orders of council by
Great Britain, and the decrees by France, which went in a great degree
to cut off and destroy the whole commerce of the United States. In case
those causes should be removed, I presume it will be thought necessary
that there should be a power vested somewhere to withdraw the embargo
occasioned by those orders and decrees. As therefore it is believed that
we shall not be much longer in session, and it is at least possible that
these orders and decrees may be removed, that Great Britain may revoke
her orders of council or change them so as not to affect our commerce,
and that France may revoke her decrees or change them so as to render
our commerce secure, it is all-important that a power should be vested
somewhere to give the people such relief as would be justified by this
state of things. Suppose it were the case that any alteration should
take place when Congress were not in session, some weeks, nay, some
months must pass before Congress could be in session and a law pass for
removing the embargo; the consequence of which would be that the country
would suffer the pressure of the embargo for weeks or months longer than
would be necessary; and I presume no member of the House will say that it
would be proper to continue longer than necessary the pressure which the
embargo must make upon them. There is I presume at least some reason to
believe that the belligerent powers themselves are beginning to see their
own interests injured. We see, by the latest accounts from Great Britain,
that propositions are made in Parliament for revoking her orders.
Should this take place, it is presumable that we also should revoke
our regulations. This measure would also have a good effect in turning
the attention of the people to the real source whence their present
inconveniences flow; they will be taught to look to those circumstances
which produced the embargo, a change of which would justify its removal.
This would be a consideration of some importance. The mind of the public
would be kept alive by the expectation that every day may bring the news
which would induce Government to revoke the embargo, which no doubt bears
hard upon the agricultural as well as commercial interests of the country.
The resolution as it now stands seems to me to embrace the principal
grounds upon which we ought to authorize the Executive to suspend the
operation of the law in question. If a general peace or suspension of
hostilities take place in Europe, it would seem that there would be
no danger from a suspension of the interdiction of our own vessels
from sailing; but if no such event takes place, in the event of such
alterations as shall exclude American commerce from the operation of
the orders and decrees of the belligerents, it will be proper that the
embargo should be suspended, they being the grounds on which the measure
was adopted. You must vest a power somewhere to ascertain whether such
change take place or not. You cannot precisely determine the fact which
shall authorize suspension; for were you to say that in case of a
revocation of the decrees of France or England the embargo shall cease,
you give a vast advantage to those nations--for they may revoke them
to-day and reinstate them to-morrow, as their interests may dictate. It
is therefore necessary to vest a power somewhere to ascertain not only
the revocation, but a reasonable assurance that they will not be renewed.
For this purpose it is essentially necessary that the President should
be authorized to determine the changes which shall render our commerce
safe, by the assurances which may be given that they will not again
resort to similar measures. This I mention only as my general object;
as to the expressions in the resolution I am not tenacious of them; and
in any modification of them which shall promote the public good I shall
certainly acquiesce. I have no object but one; that the public may see
that we have not left our posts till we had done every thing in our power
to relieve them from the distress of measures adopted by us and rendered
necessary by the conduct of other nations.
I conceive this to be more important to the people on the seacoasts than
to the people in the Western country. To the Western country a few weeks
or months protraction of the interdiction, in the fall of the year, could
not be of much importance; yet it would seem to me that in the commercial
cities and towns, in the Atlantic States, a few days or weeks, much more
so a few months’ which might occur before Congress could convene, would
be very important; and they would feel much uneasiness if, knowing such
changes had taken place as would warrant the removal of the embargo, they
were compelled to lie under its pressure until Congress could meet to
revoke it. It cannot be expected, after the President shall determine to
call Congress, that they can be convened here in less than three months.
Such a resolution as this therefore would be beneficial to the commercial
interest.
WEDNESDAY, April 13.
_Suspension of the Embargo._
The House then went into a Committee of the Whole on the resolution.
Mr. LOVE said, to a proposition having for its object the removal of the
embargo, at the first moment the public interests would permit, he had
presumed there would have been no objection made either on that floor
or by any man in the nation. In this presumption, said Mr. L., I am
extremely sorry to be disappointed, and more especially so as the mode of
opposition calls for a reply from those who have been the advocates of
the system of policy pursued by the Government, during the embarrassing
crisis it has been compelled to encounter.
The proposition before the committee is so familiar to those who have
been long in the habits of legislation, from the frequent exercise of the
general principle on which it rests, that nothing not already obvious to
the minds of the greater part of this honorable body, I am sure, can be
said in support of it. In the observations therefore, sir, which I shall
trouble the committee with, it will not be necessary to say more than
shall be proper in answer, only, to the objections which have been made
at this time, to the exercise of the power contemplated by the resolution.
I have heard no argument yet urged against the right of delegating in any
situation, or under any circumstances, the exercise of special powers
which are acknowledged to be vested in a more general view essentially
in the Legislature. The argument, if urged to such an extent, would
evidently defeat itself, and go to destroy the operations of this
or any other Government deriving the source of its authority from a
Legislature. Our constitution has enjoined many duties on Congress, which
without a delegation of the powers thus vested in it, could never be
effected. An objection to the resolution under discussion on so broad
a ground, would have been too obviously untenable. The question has
not been thus directly met; but in opposition to the constitutionality
of the delegation of power contemplated, a distinction has been taken
between the authority which should be given to suspend a law, already in
operation, and one which has not yet commenced its operation.
I listened, sir, with every possible attention to the argument made on
this distinction. I am obliged to say there was no reason intelligible to
my mind, offered in support of it. I will content myself therefore with
expressing the opinion that the circumstance of a postponed or present
operation, cannot make a difference in the principle. In both cases the
authority which delegates the agency is the same, it is the act of every
branch of the Legislature, and there can be no distinction which would
not apply to one equally with the other. It may in the manner of its
exercise be assimilated to the powers of a Legislature to repeal a law
already in existence, in contradistinction to the power of repealing one,
the operation of which had been suspended. If such a position could be
sustained (as a proper inference from our constitution) it would be vain;
for if the Legislature have the right of repealing a law, they might in
the same breath that they would repeal this, enact another which should
provide in a manner so far in conformity with the practice acknowledged
to be correct, as to be entirely exempt from the objection urged on the
ground of this distinction.
When I compare the limited nature of the power now proposed to be
delegated, with those almost unbounded trusts which it has been the
constant practice of the Legislature to confide in the Executive
Department, I cannot help feeling at a loss to account for the present
opposition on any grounds of consistency. Those delegations of authority
have not been confined in practice to either of the political parties
which have at different times given a tone to the Government. The
gentleman from Tennessee, who has introduced the resolution, has
mentioned several instances in which this has been done; permit me to add
others, in which it appears to me the principle has been carried further
than in the present case.
By the constitution, the power of borrowing money is in express terms
_exclusively_ vested in Congress. Yet this has been only exercised by a
delegation of it, from the commencement of the Government till the time
has ceased when it was necessary to exercise it. I hope, sir, it may
never be necessary to do it again; but if it should, I ask gentlemen how
it will be effected but by the intervention of an agency, although the
words of the constitution permit _Congress only_ “to borrow money on the
credit of the United States.”
Other powers of great importance, solely confided to Congress, have been
delegated, and not as now contemplated, in a restricted and limited
degree, but in terms of the broadest and most absolute discretion;
many instances have occurred of this in constant succession ever since
the revolution, in political opinion, which has taken place in the
Legislature of the Union; for scarcely were the Republicans warm in
their seats before they made a delegation of the power to the President,
more unlimited in principle and more dangerous in practice than that
now advocated, for suspending the operation of the embargo law. In 1802
he was authorized to organize a military corps. In February, 1803, he
was authorized to cause to be built several vessels of war, if the
exigencies of the service should require it. In 1804 the same powers were
repeated, and many others, equally dangerous and equally necessary, were
delegated both these years. In March, 1805, he was authorized to permit
or interdict at pleasure foreign vessels from coming into our ports.
Compare the discretion either in extent or importance vested by those
laws, with that now contemplated, and on the ground of precedent we are
more than justified; even in the present session we have delegated the
power of suspending or continuing a law, now certainly in operation, by
authorizing the President to build and equip, or not, at his discretion,
a number of gunboats, or he may, under the influence of the like
discretion, for ever desist from the execution of it.
If this body is supposed to act under the regular impulse of any
political principles, it appears to me, sir, that the numerous precedents
to be found in our statutory code ought to have an effect. In those which
I have mentioned, and many others which have been enumerated by the
gentleman from Tennessee, the President was vested with the right, _ad
libitum_, to continue, suspend, or terminate the operation of a law. In
the present one the discretion is limited to the contingencies of peace
in Europe, a suspension of hostilities, or such conduct and assurances on
the part of the belligerents who have invaded our commercial rights, as
will enable our vessels to pass with our produce in safety to a foreign
market.
Let us now examine, sir, the other constitutional objection made by
the gentleman from Virginia, (Mr. RANDOLPH,) that Congress have not
the power to lay an embargo. If indeed this novel position be correct,
the question is at an end, and the people of the United States would
be justified in the resistance the argument invites. I had indeed
understood the gentleman, as others near me did, to found his idea of
the unconstitutionality of this embargo, on the circumstance of the laws
imposing it being unlimited as to time. He defined an embargo to mean an
inhibition for a limited time, and this unlimited nature of the present
embargo was dwelt on by him with peculiar emphasis; but when a gentleman
from Kentucky, (Mr. JOHNSON,) who followed him, had ably exposed the
fallacy of this distinction, and completely sent the argument home to its
author, the distinction was abandoned by explanation. I understand the
explanation of the gentleman; but as the object in pressing the unlimited
quality of this embargo on the sensibility of the nation, cannot be
mistaken, I have too, sir, for reasons alike obvious, thought it proper
to mention it.
But, sir, as to the power to lay an embargo. The first motives for a
union of the States, imply this as indispensable. It would be enough
to show it to be a measure of general defence and protection, to give
Congress a right to act on the subject; as such, sir, it expressly ranks
among the provisions assigned as the great causes for the adoption of the
Federal Constitution; for in the preamble to this instrument, the people
say, they have adopted it in order “to provide for the common defence and
general welfare.”
In the first paragraph of the eighth section of the first article, the
same words are repeated; common defence and common protection to the
external interest of the United States, are then the peculiar objects
of its Government. An embargo under some circumstances is not only a
proper but a necessary and indispensable means of common defence and
protection; I might say that the present crisis is a strong illustration
of such necessity. But if the right to lay an embargo is controverted,
I would ask by what means is the Government in time of war, or expected
war, under the authority of law to secure the property of its citizens,
which it is the business of all Governments to do, towards all who claim
under it the protection of their rights? Where is the power lodged, if
not in the National Legislature, which shall prohibit your own, or even
your enemies’ vessels from leaving your ports, after a declaration of
war? Are the States vested with, or do they generally retain the right to
lay an embargo? No, sir, they cannot so far enter into the collisions of
interests which would follow among each other by preventing the vessels
from sailing from the ports of any of them. The effect of doing so
would be too obviously an invasion of the general powers of commercial
regulation solely intrusted to Congress. Can any man of rational mind
suppose, then, that the Government of this country is really so defective
in what is not only to common sense an obvious reason, but one of the
express objects of its institution?
But to lay an embargo is unconstitutional, because Congress cannot lay an
export duty! And it is argued by the same gentleman that the lesser power
being thus provided against, the exercise of the greater must of course
be included in the prohibition; the minor forming an objection, the major
is, _a fortiori_, inadmissible. How easily, sir, is this argument of
inference retorted on the gentleman; for, according to a familiar and
certainly plain course of reasoning, it would seem, that if the subjects
are the same as is said, when the framers of our constitution made an
exception of the lesser power, if they had intended also to except the
greater, they would not have forgotten it.
The reasons which influenced the framers of that instrument to provide
against the power of laying an export duty, were obvious; the provision
was adopted in that spirit of mutual accommodation, which was so
necessary to the harmony of the whole. It would be difficult, it was
easily foreseen, to devise an export duty, which would not bear harder
on some of the States than others; it was better therefore not to resort
at all to a mode of taxation which would afford so fruitless a source
of contention. The policy too of taxing exports was perhaps radically
inadmissible; yet I cannot, for my life, discern how an export duty has
been drawn into analogy with an embargo.
That the embargo was a curse, and continues to be a most calamitous one
to us all, I have heard no one deny; but until now, I have not heard the
assertion advanced that our Government, by its conduct, was the author of
that curse. Yes, sir, many evils which the injustice of other nations has
inflicted on the peace and honor of the United States are acknowledged to
be curses of the most irritating and affecting nature; but the gentleman
has said more for England and France, than either of them has before said
for itself, when he attributes to his own Government the misconduct which
has produced those evils. It was scarcely to be expected that any state
of internal division or any views of whatever description would have
produced on this floor an assertion which has thus put a new argument
in the hands of our enemies in justification of their aggressions on
us; it is more than our enemies have asserted. We have heard indeed
from France and England that their decrees and orders, which make the
present voluntary retirement from the seas necessary on our part, were
the effect of an unjustifiable attack, which each has attributed in the
first instance to the other. Each criminates the other, and not America,
with being the author of the peculiar mode of warfare which has proved so
destructive to the rights of neutrals. The very language of their orders
and decrees assumes this position, and they are all prefaced with the
declaration, that their orders are enacted in the spirit of retaliation
on each other, and not, sir, for any offence which our Government has
been the author of, as the gentleman now tells the American people; for
what purpose let the nation judge.
I may surely be permitted to express my surprise and astonishment at this
assertion, sir, as it has never before been insinuated, on this floor at
least; and as it forms so strong a contrast with the declarations which
have been before made by the same gentleman, permit me to recall the
gentleman’s attention to his arguments in conclave, and to notice, if it
will not be out of order, (which I presume it will not, as all which then
took place has since been directed to be published,) the grounds of his
opposition to the embargo at that time.
It is recollected by us all that the honor of presenting a resolution in
conformity to the policy recommended by the President, in his Message
of the 18th of December last, was an object of emulation between the
gentleman from Virginia and one from Massachusetts, (Mr. CROWNINSHIELD,)
whose absence from the House the nation has so much cause to deplore,
and we all so sensibly feel. I thought it then, and still think it
an honorable emulation, arising from a patriotic sense of duty. The
gentleman from Virginia finally succeeded, and became the author of
the resolution in this House for laying the embargo; scarcely had he,
however, presented the resolution, the necessity of which he at the same
time took occasion to observe he had long foreseen, and, for two years
at least, before the period when it was recommended, (and, of course,
sir, prior to the rejection of this noted London Treaty of December,
1806, now so much eulogized,) scarcely had he thus expressed his
approbation of the embargo, till he again doubted its policy, and soon
after denounced its justice, not yet, indeed, for any of the reasons we
now hear, respecting the rejection of the treaty, but because it was a
measure said, or insinuated, to be dictated by France; and that it was to
have an injurious operation solely on England. It was in vain that the
friends of the embargo urged the probable existence of the very grounds
that measure now more strongly rests on; that the hostile determination
of France to enforce her decree of November 21, 1806, would probably
be followed by orders as harsh on the part of Great Britain; that this
was the course of policy the adoption of which England had already
announced, and its execution might, therefore, be fairly anticipated;
that the King’s proclamation of the 16th of October, 1807, a copy of
which accompanied the President’s Message, was an evidence of the
determination of that Government to offer no satisfactory accommodation
of our differences, and of its determined usurpation of our maritime
rights; to these arguments nothing was replied, but the repetitions in
lengthened speeches of the same charges. The opinions then avowed, sir,
by the advocates of the embargo, have met with support from the events
which have since been developed, while the unjustifiable grounds of
opposition are abandoned, even by their authors. But, sir, if there is
any gentleman, who, with his eyes open to the situation of the commerce
of the world, will say that the embargo ought to be removed, and that the
policy is unsound, let me ask him to tell us what, in the embarrassing
state in which we are placed by the efforts of France and England to
involve us in their conflicts, we are to do? The gentleman from Virginia
has hinted at arming our merchantmen! War, then, is the substitute; it
is, indeed, the only one, I agree. To arm our merchantmen, leads to
war--nay, sir, it is war, according to the interpretation nations have a
right to put on such an act of a Government; it will be opposed by open
war and undisguised hostility. If we are to have war, let it be in the
direct tone and unequivocal language of a nation indignant at the insults
it has received, not in the indirect manner of arming a few trading
vessels, the masters of whom would choose for the nation its enemy,
or involve us with both the belligerents at once, as their particular
animosities might dictate; if we are to go to war, it might be well to
fight one at a time at least. But, sir, I cannot but hope if our strong,
but pacific policy is adhered to, cursed as it is said to be, it may yet
preserve us from the conflicts of Europe. It is a curse, indeed, sir,
under which we are compelled to labor, but what is the alternative? I
have thought much, sir, on the subject; it has been my duty as well as
that of every other gentleman to weigh it well. We hear its effects are
severely felt, and we hear, too, what are the exertions of our opponents
to seize the favorite opportunity which it is so well calculated to
produce, to excite the sensibility of the people through the medium of
their immediate interests. But remove the embargo, and we must arm our
vessels, and war is at once declared. I have heard no one deny that
this must be the alternative. Compare the evils, both of great extent.
I admit, by the embargo, we lose half the value of the products of our
country, or the receipt of it is suspended; by war, to admit the effect
in this particular, no worse, at least it could be no better; but have
we counted the costs of the armies we are to raise, and to pay, of the
supplies we are to furnish, of the loss of our blood, and the diminution
of our strength, of the reduction of the profits of agriculture itself,
by calling men from their domestic occupations, and lessening the number
of hands for tillage--have we calculated the thousand other evils which
follow in the train of war? To plunge into war, sir, to escape the
curse of the embargo, would be truly fulfilling the adage of old--“out
of the frying-pan into the fire.” I do not hesitate to say that, if we
have patriotism enough to pursue our own interests, better would it
be for this country to remain under the truly calamitous curse of the
embargo for years, than at once to launch itself into war. But if we
must at length, after all our efforts to prevent it, have war, let it
be a war dependent on national sentiment, and arising from no doubtful
necessity, which must be produced by the conflicts of our vessels at
sea. We all know, and have felt that it has required the exertion of an
unparalleled fortitude, to resist the emotions which have impelled us
to acts of vengeance and redress for our injuries; let us not, then,
seek for new causes, of doubtful necessity, to place us at once at war,
as would be the case by arming our vessels. No, sir, let it be a cause
which, in spite of our divisions, so earnestly of late fomented, must
unite us in one spirit of opposition, in one sentiment of indignation
against the enemy who shall attack us, with the spirit of unanimity with
which a sense of injury will inspire us. I do not too highly estimate
our strength, or, I trust, our patriotism, when I say, that no army
which Europe combined could transport across the Atlantic, could long
withstand the American arms. That we have had ample cause, of war,
wanton, unprovoked cause, I had not, till now, supposed had been doubted;
we are now, indeed, informed that our Government is to blame, and that
the insults and injuries to which we have been subjected, are, in a great
measure, attributable to its misconduct. What the object is, in making
these assertions, let the nation judge; believing them groundless, I
do not fear to be able to prove them so. The non-importation law has
been mentioned as one of the subjects of just umbrage to England, and
as having had an embarrassing effect on the state of our negotiations
there. The gentleman has certainly but little attended to the documents
which have lately been read in this House; if he had, he would there have
found, under the sanction of authority which he is not presumed to doubt,
that it was a measure one of our Ministers in London has given his most
unequivocal approbation to.
It was said that our Ministers were suppliants at a foreign Court--our
Government must place an efficient instrument in their hands; and a
coercive system of policy is recommended, with a direct allusion to the
enaction of the non-importation law before the rising of the Congress
then in session.
We are told, too, that a principal cause of our embarrassments is the
rejection of the treaty concluded by our Ministers in London on the 31st
of December, 1806. This assertion has been made here, sir, with such
earnestness that it requires examination. The treaty which has been
rejected by our Government has been eulogized, and a month’s discussion
of it has been challenged; not, it is true, wholly on its intrinsic
worth, or positive merits, but because the circumstances, also, under
which it was concluded, made its provisions proper, and its adoption
necessary. The Treaty of 1794, commonly called Jay’s Treaty, I understood
the gentleman also to say, would under the existing circumstances of
December, 1806, have been proper for our adoption. This was, indeed, sir,
a necessary preface to his defence of the rejected treaty, for it is
certainly susceptible of easy demonstration, that it is, in its features
and provisions, far more objectionable and defective than the Treaty
of 1794; and, whether we take it on the ground of peculiarity in the
circumstances of the contracting parties, or on its intrinsic merits, it
has less claim to our assent.
In the first place, let us examine the circumstances under which those
two treaties were made, and then compare their respective provisions.
From the retrospect I am at this time able to take of our situations
at those different periods, I cannot hesitate to believe that the
circumstances under which the Treaty of 1794 was made, were more
unfavorable for negotiation on the part of the United States at that
time, both as they respected England and America, than they were in
December, 1806. As they respected England, her situation was at the
former period infinitely more commanding. By her combinations with the
great powers of Europe, as early as 1792, or perhaps antecedent to that
year, she was perfectly secure against any annoyance from France, her
only enemy in 1794. The Treaties of Pavia and Pilnitz, to which, it is
believed, England early in 1792 acceded, and which certainly laid the
groundwork of the conventions and coalitions of the spring of 1793, had
produced the effect of uniting in concert with her against France, the
powers of Russia, Germany, Prussia, Spain, Portugal, and many of the
minor States of Europe. England, then, felt no apprehensions for her own
safety, none for the abridgment of her commerce, and seemed to be but
little sensible to her interests in cultivating a good understanding
with America: her single enemy was confined to his own territories, and
threatened even with famine. The United States, in 1794, had not long
commenced their existence as a nation, and their new Government might
be said to be scarcely more than in a state of experiment. The debts
which had been created by the Revolutionary war, we had undertaken the
honorable discharge of, and we were then laboring under the immense
load; our resources were comparatively small, our embarrassments great,
our burdens by no means in a course of alleviation, and our situation
totally defenceless; the savages who bordered on our frontiers were
numerous, strong, and fierce, and our armies had but recently suffered a
dreadful carnage and terrible defeat; we were destitute of manufactories
which could supply us with arms, or the means of filling our arsenals;
a civilized nation of Europe, then great and powerful, bordered her
colonies on our Southern frontier, and disputed with us the navigation
of our rivers. Sir, if circumstances could ever sanction a dereliction
of right, and a compromitment of interest, those circumstances, then,
might be said to exist. Then, indeed, there might have been a semblance
of apology, in our infant and crippled state, for leaning, in some
measure, on the strength of a nation which was supposed to stand firm.
I confess, sir, I would rather, even at that time, have had no treaty,
than such a one as was then made; it has set a bad example. But what
was our situation in December, 1806--adverting again to circumstances,
which are made the test in this case, when the treaty, since rejected,
was signed in London? Our strength and population increased to a most
envious and flattering degree; our foreign debts discharged, and our
domestic one, which we had honorably assumed the payment of, reduced--our
credit established abroad, our Treasury overflowing, and our resources
flourishing; manufactories of arms were every where reared, and had
furnished the nation with the best means of defence; the savages on
our frontiers were subdued, or civilized; our Southern frontier was
extended and had grown strong: England, instead of her prosperity and
powerful combinations of 1793, was left almost single-handed; the
subordinate powers of Europe had become a part of France, the great
nations were either under her control, or struggling in their last
efforts of disastrous conflict: France, instead of being confined to
the defence of her own dominion, was carrying on offensive war, and
England had been made to tremble for her own existence. What then are
the circumstances alleged, to palliate the evils of such a treaty as was
offered us? Was England about to be suddenly relieved in an instant from
her embarrassments and burdens? How? We are told, indeed, that France had
pushed her conquests too far, that her Emperor had so far stretched his
arm of conquest, as to leave himself exposed to the most imminent danger
at home; was it therefore that England elevated her hopes, and carried
her demands? Stuff, sir, fit only for the cook-shops and coffee-houses
of London; I should never have expected it to find its way into the
semi-official letter which has been read to us, from a character who has
deservedly stood high in the rank of politicians. But our own internal
situation, threatened with conspiracy, the extent and magnitude of which
was unknown, was another reason it has been suggested for hastening the
execution of this treaty. How, in December, 1806, accounts so alarming
could have reached England of the extent of Burr’s conspiracy, I cannot
but be at a loss to conjecture. The alarm at that time here, was not I
believe very serious; not such, at least, as would have been a reason
with any man in this country to have thrown ourselves into the lap of a
foreign nation, or to have made a treaty which compromitted our rights,
and left our interests unprovided for. I must say I think too much
alarm was felt on this subject, and that it would at least have been as
honorable a sentiment towards the people and Government of America, to
have entertained an entire confidence in them, that without any great or
dangerous effort they were capable of quelling the conspiracies which
might be engendered against their peace. I assert that independent of
circumstances which I have endeavored to show were more unfavorable as
they regarded the United States, and far more favorable as they regarded
England in 1794, than in December, 1806, the treaty of the latter
date is worse than that of the former. The former did provide redress
in some sort for previous injuries. That of the latter date contains
no provisions for any kind of redress or compensation, which was due
to us, for the very many spoliations which had been committed on our
commerce--it offers no alleviation to the evils of the former--is silent
as to the injuries and insults which we had sustained in our waters;
totally, sir, although these were subjects of special instruction from
our Government, and although we were told by our embassy that a treaty
was concluded on the different points of commercial interest. Was it
forgotten, sir, to what an immense amount America had suffered under the
different orders of the King in council, even from the very date of the
former agreement for reparation? Were not our losses under the orders
particularly of 1798, which gave rise to so much of the havoc our neutral
commerce had groaned under, and which placed the nations of Europe in a
better situation than the United States in the conveyance of colonial
produce, known to our Ministers? It must have been recollected, for it
was enforced in their instructions, how our vessels had been incessantly
sent into the ports of Britain and her colonies for adjudication, and
the unjust condemnations which had taken place, under the construction
of those orders. It must have been recollected how far in the first
instance the orders themselves had gone towards the subversion of
the laws of nations. The time was, indeed, when a great jurist, Lord
Mansfield, had declared, that neither the orders of the King in council
nor even an act of Parliament which contravened the law of nations was
binding on any one; this was said in the case of the Silesia loan, but
those days were past. Sir William Scott has since told us, that the text
of the instructions are his guide, and King George the Third is thus,
by his single voice, to make and expound the law, which is adjudged to
be paramount in modern times to the laws of nations. The adjudications,
it is a well-known fact, have been in conformity to the Royal will,
stimulated alone by the shipping interests of England; principles of
adjudication have been established in the British Courts of Admiralty,
which had on the most unjust pretensions wrested from our citizens many
millions of their property. Why by this treaty give up our claims to
reparation, as they were most emphatically, by signing a treaty which
yielded no redress for them while the claims were still unsatisfied; by
making a compact which wholly pretermitted them? It is said, sir, that
the disputes respecting the colonial trade are adjusted by this treaty.
How--by agreeing to a duty on exports? Where was our constitution, now
so strongly pressed in discussion, when this stipulation was made;
when it was solemnly covenanted, that we should directly invade one of
its provisions by laying an export duty? And that, in addition to the
deduction on drawbacks allowed by law, an export duty of one, two, or
three per cent. should be imposed on colonial articles? Why make the
extraordinary and vain stipulation too, contained in the fifth article,
that we should have a right to lay the same export duty which England
should have a right to impose, if we could lay none by our constitution?
The subject of blockades also, sir, was one on which some stipulation
was made absolutely necessary, by the novel doctrines lately asserted,
and insisted on by the nations of Europe; it was important that their
extent should in some way have been defined, their nature described,
when a blockade should be said to exist, and that it should not be a
question left entirely to the discretion or interest of a belligerent,
or the caprice of her officers. This single question had already led
us at different times to the very brink of war with England. In June,
1793, she asserted all France to be in a state of blockade, and ordered
our vessels to be captured which should attempt to enter any of her
ports with our produce. France had in May of the same year issued an
inhibitory order against our trade, of a nature but little less hostile,
in consequence, as it was said, of the Russian convention made in London,
I think in March of the same year. In the fall of 1793, the British had
issued secret orders on the same principle of blockade, which entrapped
our West India commerce, to an immense amount, before they were known
by us to be in existence; this it was said was a principal reason for
the proposition contained in a bill for prohibiting all intercourse with
England, which had in the early part of 1794 received the sanction of
the House of Representatives, and was rejected in the Senate but by the
majority of one vote, and which was succeeded by Mr. Jay’s mission. To
the same class, too, may be assigned the British orders of May 1795,
against our vessels laden with provisions, which brought President
WASHINGTON to a stand on the British Treaty, and caused him, it is said,
to demand a previous explanation, which was at that time I presume,
satisfactorily made, but which has been since in innumerable instances
violated, and the same vague and undefined principles of blockade
enforced; at one time by declaring a blockade to exist from Brest to the
river Elbe, at others by proclamations of blockade equally extravagant,
and more than once by the declaration of the British naval commanders,
that a whole kingdom should be cut off, at a stroke of the pen, from all
the trade of neutral nations. But, sir, if the general and extensive
evils which the new doctrine of blockades had superinduced, were not of
sufficient importance to claim a stipulation against their exercise in
future, there was one species of injury which seemed really to merit,
and to claim indispensably, some notice either by redress or stipulation
against its future practice. I know not how to class it; it may be
assimilated to a modern blockade, inasmuch as it assumes a jurisdiction
wholly ideal; I mean that which was a particular subject of complaint,
from the assumption made of a right by a British naval officer in the
port of New York, in claiming jurisdiction and the exercise of the right
of impressment, and of course every one less inimical to natural right,
within the distance of the buoys from his ship. To this assertion of
authority I see no disclaimer in this applauded treaty, or any hint at
redress for the injury inflicted by the particular occasion on which it
was exercised. If this new claim of naval sovereignty is insisted on, or
thus tacitly permitted, it is time it should be so understood; for with
the same propriety with which the British commander in New York claimed
jurisdiction within his buoys, another might claim British jurisdiction
from Boston to Charleston, if he could so far stretch a cable.
I come now, sir, to say something on the question of impressment, wholly
omitted in the treaty, and which the gentleman from Virginia has said
was informally and satisfactorily arranged by the note of the British
Commissioners on that subject. He has said that their note contained a
stipulation, “that they would order their naval commanders to abstain
from the practice of impressments on board American vessels.” I confess
I was astonished at the declaration. It is true the printed document
has not been furnished till just now. I presume the note of the 8th of
November, 1806, to have been alluded to, because something like the
same defence on this subject has been used by one of the American
Commissioners in his late letter to the Secretary of State, (although,
indeed, until I heard that defence read, I had not understood that any
improper dereliction of the American interests had been imputed to our
Ministers; I had always understood, and, except in the letter alluded
to, and the arguments of the gentleman, I have yet understood from
every source of information open to me, that it was not expected by our
Ministers that the treaty could be ratified by the American Government,
but that it was the best they could obtain;) I could not think the
quotation of the gentleman correct as to the language of that note. I
mentioned then, sir, to those who sat near me, that I had understood it
to convey no promise to abstain from the practice of impressment, but a
vague and unsatisfactory declaration that the British naval commanders
should be instructed to use caution in the impressments they made; as
it was said they had been always before instructed; by that means, sir,
placing ourselves, if we choose to recognize this informal stipulation,
in a worse situation than before, inasmuch as it was an unequivocal
acknowledgment of the right of impressment, when exercised under the
caution of a British officer. And what, sir, is the language of this same
note of November 8th--we have it now before us: “His Majesty’s Ministers
give to Mr. Monroe and Mr. Pinckney the most positive assurances, that
instructions have been given and shall be repeated and enforced for
the observance of the greatest caution in the impressing of British
seamen, and that the strictest care shall be taken to preserve the
citizens of the United States from any molestation or injury; and that
immediate and prompt redress shall be afforded upon any representation
of injury sustained by them.” How, sir, let me ask, have those officers
conducted themselves under these repeated instructions? To say nothing
of the continued violations committed on our merchant vessels, we have
indeed had a most notable example of the extreme caution which her naval
officers had no doubt been instructed, and were determined to observe,
in the mode of impressments, in that excessively cautious plan adopted
by Admiral Berkeley, to effect his honorable and loyal purposes, in
the memorable attack upon the Chesapeake. Then, sir, I must admit,
that in pursuance of what I now believe were his orders, the most cool
and deliberate caution was used. Our frigate, on an outward voyage, on
the very day she left her port, in the usual unprepared state in which
I am told vessels of war sail in time of peace, is with the utmost
caution pursued by the British ship of superior force, in sight of
several others. The American frigate is overtaken; her men, proved to be
American citizens, are demanded of her, as of right being the subjects
of the King. They are refused, and indeed, sir, I must acknowledge, with
peculiar caution, before it was possible for our frigate to prepare for
action and the defence of the honor of her flag, the British commander
fires three broadsides into her, and commits the murder of fifteen or
twenty other American citizens, and no doubt most cautiously compels the
United States frigate to strike her colors, goes on board, and takes off
three of the native citizens of our country, none of whom have to this
day been returned!
But, sir, if this treaty, with its appendages, had contained in it
provisions and stipulations which were responsive to our injuries, and
which comported with our rights, is there a man in this nation, who
consults the dignity and honor of his country, who could have wished its
assent to it, subject to the condition dictated by the King of England,
and transmitted by a note of the British commissioners annexed to it? The
gentleman from Virginia has spoken of the insult conveyed by the letter
of Champagny of the 15th of January, 1808, to our Minister in Paris;
its terms have been grammatically scanned. Sir, there was no need for
this; we are at no loss for subjects of humiliation and insult, whether
we look to France or to England. As early as 1793, attempts of the most
unjustifiable nature were made to involve us in war by both these powers.
Lord Grenville, so early as that time, expressly told our Minister,
without disguise, that the British orders of November in that year were
intended to have an internal effect upon the affairs of this country.
Such has ever since been the conduct of the belligerents, constantly
and undeviatingly pursued in the most disrespectful manner, towards us;
such was certainly the object of the British Cabinet, in annexing the
note of the 31st of December, 1806, to the treaty of that date; and
certainly, sir, if a direct attempt to force us into war, is considered
an insult to our independence, and an encroachment upon our rights of
self-government, such was the language of that note, which, in open and
unreserved terms, made it an indispensable condition to the ratification
of the treaty, “that the Government of the United States, by its conduct
or assurances, will have given security to his Majesty, that it will
not submit to such innovations in the established system of maritime
law,” as the French decree therein alluded to contained--his Majesty
thus most graciously taking upon himself the right of determining for us
what course of conduct we should pursue towards his enemy! I do not say,
sir, that the letter of Champagny, which has been repeatedly mentioned
with such asperity by the gentleman, is such a one as consists with the
respect due to us; by some gentlemen its language has been construed
to mean a proposition originating in a disposition of friendship, and
to convey nothing more than an offer, founded on a supposition of the
actual existence of war between Great Britain and the United States,
and in that event, to take care of such of our property as should be
exposed to capture, until there should be an opportunity of restoration;
but to me, sir, I confess the language is not satisfactory. We have a
right to expect from all nations something more, or something less than
equivocal language. Our Government speaks in terms of friendship, and in
the plain language which neither conveys a doubt as to its hostility or
friendship; we have a right to expect the same frankness in others. But
why, sir, should gentlemen who profess to feel, and I hope do feel only
as Americans, suffer their sensibilities to transport them to battle
with the Gallic Cock, while under heavier insults they seem disposed to
succumb to the British Lion? Why is the letter of the British Minister
of the 23d of February wholly forgotten, when we are undergoing the
humiliating revival of insults and threats? Is it less awakening to our
national sensibility, and to the alarms of honor or interest, to be
told, as we are by that letter, that his Majesty the King of England is
disappointed in his just expectation that we should have gone to war
with France, than to be told through our Minister at the Court of France
that the Emperor of that nation expected we were at war with England?
If insult was intended by either, it seems to have been measured by the
same equal standard with which they have by their hostile orders measured
their injuries to our commerce; perfectly in the spirit of retaliation,
sir.
My astonishment, sir, has indeed been excited more than on any former
occasion, when I have heard a gentleman condemn our Government for the
rejection of a treaty, which provided no redress for former injuries, no
security against future ones, and which, by the conditions annexed to it,
would have infallibly, by stipulating resistance against a belligerent,
directly have involved us in war; and that not a war of self-defence, but
a war of alliance with one of the powers, for the purpose of resistance
and offence against the other. War, sir, I hope will be avoided,
notwithstanding the bold attempts to involve us in it, and which have
been so steadily pursued by the contending nations. It will I hope be
avoided, unless our self-defence shall render it indispensably necessary.
Attack or invasion from France cannot be rationally contemplated. War
with England, we must all agree, rests on more uncertain grounds; if
any thing will prevent it, I believe it to be the course pursued by our
Government. The resolution under discussion explicitly avows the terms
on which we will consent again to renew our intercourse with Europe.
If Great Britain is induced to relax, France must and will pursue the
same policy. I think, sir, we have a right to believe, from the best
information from England, that this relaxation will take place. I am
aware of that disposition in the ruling party in England to go to war
with us. I have no right to doubt the truth of the declaration of Mr.
Monroe, that there is a party in that country strong and active indeed,
as he has described it to be, who are disposed to hostility with us,
and who are at all hazards determined to support the maritime supremacy
of Great Britain; they are described to be the navy interest, the East
India chartered companies, the West India traders, and the shipping
interest--strong and active indeed, sir; they sit at the elbow of
Majesty, and influence his ready will; but their temptations to war are
removed by the embargo, and I hope will continue to be so, until they
rescind those orders which have cut us off from the commerce of the world.
But the power contemplated by the resolution, of meeting any friendly
disposition on the part of the European powers, is to be withheld,
because it would add too much to the already overgrown popularity of
the President, who, like Julius Cæsar, has been offered the honor of a
Crown! It is true, sir, the demonstrations of confidence in the present
Chief Magistrate are general and sincere in many parts of the Union.
At the time the only address of this kind was proposed, which I have
ever understood originated in Virginia, I had the honor of a seat in
her Legislature. It was introduced and supported by the description of
politicians there denominated the _Republican minority_; in what spirit
of sincerity I leave others to judge at this day. But, thank God, it was
not permitted to progress; and thus the person to whom it was intended
to be presented was saved the suffusion of a blush, which the evidence
of such adulation from his own State would for its sake have infallibly
produced.
On this occasion an attempt is made to alarm us, by the assertion that
the administration of the Government is assimilating itself to that
of a monarchy; and it is said that the power of the President is more
dangerous than that of a British King. Has the gentleman weighed the
extent of this assertion, or contemplated the powers of a British King?
In power, unrestrained as he is by their constitution, (if constitution
that can be called, which consists of unsettled and undefined practices,
most of them originating, no one knows where, and founded on principles
which cannot be traced to any rational ground--a constitution which,
notwithstanding their declarations of rights, is perfectly incapable
of restraint upon the Executive arm; which subjects the Parliament to
the King; which makes it completely _his_ Parliament, and deludes the
people with the show of liberty, while they are governed by the single
voice of a monarch--yes, sir, it is _his_ Parliament,) has he committed
any great act of outrage on the nations of the earth? He feels the
pulse of _his_ Parliament before he permits them to convene. _His_
Parliament, I may again emphatically call it; for it is he who orders
it into existence, and he who suspends its functions or dissolves it at
will. If its pulse does not beat responsively to his wishes, he either
dissolves it or postpones its meeting from time to time, as has been
the policy with the present Parliament, which, if it had met at the
time first appointed, scarcely less than a revolution might have been
apprehended, from the general ferment the execrable conduct of England
towards Denmark had excited, and the head of our old master might have
atoned for that unprecedented act of criminality; for, as such, it had
been contemplated with abhorrence by a magnanimous people--a people who
felt for the character of Englishmen in the commission of it. There are
men there, sir, I acknowledge, who do honor to human nature. When we read
the speeches of Erskine, and other great men in the present opposition,
we may yet hope that there may be found enough of integrity in the nation
to redeem its character from the stains of murder and robbery, which the
conduct of its monarch has marked it with. Yet this is the King to whose
power that of a President of the United States is said to be assimilating
itself. By what instance, let me ask, does it appear that we are verging
to the practice of a corrupt monarchy? Is it in the proposition involved
in this resolution? No, certainly; for I have before proved that the same
powers, and much more extensive and unqualified, have been delegated at
every period of our Government, from its commencement to the present
session. Is it from any other general assumption of power? No; for it is
acknowledged by all that the present Administration has acted in perfect
consonance with the powers of the constitution, and I will add, (what its
enemies have before allowed,) with the most strict and unceasing regard
to the interests and happiness of the people.
Why are we warned, sir, on this floor, against authorizing the
President to do an act which may enhance his popularity so much as the
removal of the embargo, and that it is another mode of adding to that
influence already so overbearing? If, indeed, the embargo operates most
distressingly, (as we all know it does, on every part of the community,)
it is he who in the first instance, from the strong sense of duty,
assumed on himself the responsibility (the _odium_, the gentleman would
call it) of the measure. It is but fair, then, however ludicrous the
charge in itself, that he should be left to regain the popular favor he
is supposed to have lost. It will only leave him where he was.
But, sir, seriously, let me ask gentlemen to tell the nation, before
we separate, what they will do. Is there any one so desperate,
inconsiderate, or so wild in his opinion, as to say the embargo ought at
the present time to be removed, while the hostile Orders of France and
England are both enforced with the utmost rigor against us, and when they
have multiplied, and been extended in their effects since the expediency
of the embargo was fully decided on? What is the obvious alternative?
Either authorize its removal, when our safety will permit, or continue
in session to wait that event. But why, sir, sit here, at the daily
expense of many hundred dollars to the community, when we shall have
transacted the business of the nation, merely because some gentlemen are
now doubtful of the right or the policy of delegating to the President
a power which has, in much stronger and more general terms, been before
intrusted to him, and all who have preceded him? But, if any thing
better than this can be devised, let it be submitted. For my own part,
I promise to give it the attention its importance may merit. But, at the
least, let us unite in the adoption of some measures for the safety and
interest of our country, at this time so imminently jeopardized by the
powers of Europe.
Mr. MASTERS.--Mr. Chairman, I shall not undertake to say that the
rejected treaty is so advantageous as we had a right to expect. I do not
hesitate to declare that, or even Jay’s Treaty, is preferable to the
present state of our affairs. If we take into our view all the relative
circumstances of the British nation with France, Russia, and the other
belligerent powers, and pay proper attention to the unprotected and
defenceless situation of our country and our commerce, in forming our
ideas of what we ought to expect from that nation whose navy commands
the seas, can we then expect she will sacrifice that navy, or any part
of her power, by conceding the point of search for her seamen on board
of neutral vessels? It is inconsistent with their interest, and it is
inconsistent with their superiority. This right of search for her own
subjects, Mr. M. considered as the main block in the way of negotiation,
which sound policy and interest require we should clear away. The British
and American Commissioners had informally put this point on as good
footing as he expected. Although the resolution under consideration is
not properly limited and defined, he should not vote against it. His wish
was to raise the embargo and arm our vessels. The nation could not bear
the pressure. The embargo virtually inhibits all intercourse with foreign
nations; the effects are and will be pernicious to the agricultural
productions of this country, and produce will fall to the lowest ebb,
and enforce the most unparalleled distress on the community. Commerce
ought always to be left to the merchant, unshackled and unembarrassed, as
much as possible. Our commercial intercourse is the principal resource,
both of revenue and commercial opulence. The embargo will tear up by the
roots and annihilate the commerce of this country. And the effects will
be heavy taxes, an exhausted Treasury, a diminished and ruined revenue.
It weakens your own power, fetters your operations, and deludes your
citizens; it devours not only the fruits but the seeds of industry. It
will sink down and depress the nation to an absence of hope and a want of
resources; it will be felt by the nation as a calamity, without deciding
the general question of dispute. Prove to me the embargo is consistent
with common sense, and will be the means of adjusting our differences
with the belligerent powers, and I will then be an advocate for it.
Though we have the constitutional right to lay an embargo, it is a matter
which requires great consideration, whether the measure will have the
effect to which it was seemingly intended. It may be good in theory;
he esteemed it chimerical in practice, a mere speculative proposition.
Wisdom is to be gained in politics, not by one rigid principle, but by
looking attentively at causes and the effects they have or will produce;
not by adopting that false philosophy, which seeks perfection out of that
which, in its nature, is imperfect; which refers every thing to theory,
and nothing to practice; which substitutes visionary schemes for solid
tests of experiment, and bewilders the human mind in a chaos of opinions.
Search all the histories of the world, and you will not find eleven
hundred thousand tons of shipping, of one of the greatest commercial
nations, embargoed for an unlimited time.
Mr. Chairman, the season of our severe trial is not at an end, nor are
we yet relieved from the dejection and gloom which hangs over our heads;
doubts and uncertainty mingle with the hopes and expectations of the
people. If you bring our commerce into the situation of the Chinese, you
will end in the wild state of nature, that mocks the name of liberty, and
the human character will be degraded, instead of being free.
If you entertain a sense of the many blessings which you have enjoyed; if
you value a continuance of that commerce which is the source of so much
opulence; if you wish to preserve that high state of prosperity by which
the country has, for some years past, been so eminently blessed, you lose
all these advantages by continuing the embargo and neglecting to arm your
vessels. Restore, then, confidence and vigor to commerce. You are at war
with your own interest and every idea of policy; instead of protecting
commerce you destroy it.
In whatever view the embargo presents itself, it appears to me to be
fraught with impolicy; it was laid at midnight; that miserable scene
was closed under the darkness which suits with it, and under the secret
shelter of our own walls. If we are to go to war, you have, instead of
warlike preparations and exerting every sinew of national ability, laid
an embargo, and obtained just nothing.
The policy of France, as regards Great Britain, is to make a warlike
non-intercourse, and we have, by a side-wind, fallen into the measure,
adopted and sanctified it; we have abandoned the great highway of
nations: our dispute with Great Britain is about commercial rights; we
have given them up.
Is this country at that crisis when we shall surrender all those rights
her citizens hold most dear? God forbid! I have contemplated upon the
embargo, which is hazardous and impolitic, with great pain and anxiety,
and I turn my face from it with horror. If there are any who improperly
foster and countenance the threatening storm, whatever consequences may
follow, they are answerable to their country and their God.
All the advocates of the embargo on this floor have admitted that it was
oppressive and a curse. Take away this _curse_ and arm your vessels. It
does not follow, as the gentleman from Virginia (Mr. LOVE) supposes, that
arming will involve us in a war. When Great Britain finds we resist the
French decrees, she will revoke her orders of council. When France sees
she cannot bring us into her views, she will revoke her decrees.
Mr. FISK wished to say a few words on this subject. I am very much
surprised, said he, at the expressions of the gentleman last up, and
the gentleman from Virginia, (Mr. RANDOLPH,) yesterday. They expressed
sentiments which, if they once take root in this nation, will prostrate
your liberties and rights at the feet of foreign Governments. The
gentleman who just took his seat has observed, that the subject of
impressment was the main block in the way of negotiation. Very true, it
was, sir; it goes to the personal liberty and security of your citizens;
and if you surrender that right, what do you expect those citizens
will say to you? Do you expect they will greet you with, “well done,
thou good and faithful servant?” What can the gentleman think when he
recollects the sensation displayed at New York on the death of Pierce, in
consequence of the exercise by Britain of the right of impressment? Were
those tears and lamentations feigned, or were they the sincere effusions
of citizens feeling the injury done them, and burning with indignation
at seeing their fellow-citizens murdered almost before their face? If
we could believe what the gentleman now suggests, we should suppose
that the liberties and lives of our citizens were of no value compared
with commerce. Why do gentlemen tell us these things? Are they sincere?
They cannot weigh life or liberty in the scales with sordid pelf; it is
impossible.
It has been observed by the gentleman from Virginia, and it seems to have
been intimated by the gentleman from New York to-day, that the question
of impressment was by the rejected treaty placed on better ground than
ever was expected; that something like security was afforded to the
United States; something on which we could rely: and this assertion is
brought in with no other view than as a defence of British measures
and a crimination of our own. Let us see the language of the British
Minister, in order to ascertain the fact. In the letter from Mr. Canning,
dated October 22, he says, in answer to our Minister’s pressing this
same question for some security, “no engagements were entered into on
the part of His Majesty, as connected with the treaty, except such as
appear upon the face of it. Whatever encouragement may have been given by
His Majesty’s Commissioners to the hope expressed by the Commissioners
of the United States, that discussions might hereafter be entertained,
with respect to the impressment of British seamen from merchant vessels,
must be understood to have had in view the renewal of such discussions,
not as forming any part of the treaty then signed, (as the American
Commissioners appear to have been instructed to assume,) but separately,
and at some subsequent period more favorable to their successful
termination.” It would seem, however, from what was observed yesterday,
that this was left, though informal, on such a settled basis, that it
might have been satisfactory.
If my memory serves me, the Secretary of State says these vexations are
greater than ever. The British Government was never serious in making any
settlement against this practice. We find, in the first place, that the
British Ministers never yielded that right. We find that Mr. Canning,
in answer to our Ministers, tells them they were not to consider the
late proclamation respecting impressments as any new regulation on the
subject; that the proclamation was not considered in that light, but
merely as conveying instructions to the British commanders who might
be at a loss how to act; that the proclamation had been framed for
nearly three months, but never issued until that time. If it had been
in existence for three months, it must have been framed at the very
time that the attack on the Chesapeake was in view; that was to try the
sentiments of this country, and they meant to steer their course by them.
Therefore, it is not an instruction given to naval commanders, lest they
should mistake their duty from the late incidents, because it was framed
before the attack on the Chesapeake took place. It unfortunately happens
that the British Government has not, in this case, covered its object.
I am a little surprised to hear gentlemen telling us that arming our
merchant vessels would not produce war. Why arm, if they are not to
defend themselves? If the belligerents defend their proceedings, will
they not resist our vessels arming against their orders? Could it be
done without being met by a declaration of war? But the gentleman from
New York has told us that if we suffer our merchants to arm, the British
would consider it a sufficient token of our resistance to the French
decrees, and remove their orders of council. You have seen all the
decrees and orders which make innovations on the law of nations, and
subject our commerce to plunder. Are those of France the most hostile?
Is the aspect of that nation the most hostile? Compare the letter of
Champagny, which declares that our vessels shall be held in sequestration
depending the measures of this Government, with the note of Canning, as
well as the communications from Mr. Erskine, and what was the result?
Look at the treaty which our Government is on this floor condemned for
not signing, with the note annexed, declaring that if we submit to the
decrees of France, His Britannic Majesty would consider himself bound not
to observe the treaty. This note contained a threat; but it was nothing
to what Mr. Canning, in observing to our Ministers on this subject, says:
“His Majesty cannot profess himself to be satisfied that the American
Government has taken any such effectual steps with respect to the decree
of France, by which the whole of His Majesty’s dominions are declared in
a state of blockade, as to do away the ground of that reservation which
was contained in the note delivered His Majesty’s Commissioners at the
time of the signature of the treaty; but that, reserving to himself the
right of taking, in consequence of that decree and of the omission on
the part of neutral nations to obtain its revocation, such measures of
retaliation as His Majesty might judge expedient, it was, nevertheless,
the desire and determination of His Majesty, if the treaty had been
sanctioned by the ratification of the President of the United States, to
have ratified it on His Majesty’s part, and to have given the fullest
extent to all its stipulations.”
With regard to this treaty, I have no idea of entering into its merits.
The gentleman from Virginia, yesterday, seemed to be extremely anxious
to justify the treaty. He might have postponed its defence until it
was before us, or at least until it was assailed. I will observe that,
whatever might have been the intention of our Ministers, they placed the
United States in a very disagreeable situation, obliging them to declare
that they had no right to negotiate such a treaty. It has given occasion
to Mr. Canning to say, “some of the considerations upon which the refusal
of the President of the United States to ratify the treaty is founded,
are such as can be matter of discussion only between the American
Government and its Commissioners; since it is not for His Majesty to
inquire whether, in the conduct of this negotiation, the Commissioners of
the United States have failed to conform themselves in any respect to the
instructions of their Government.” He then goes on to animadvert on the
conduct of the American Ministers. Had they kept within the real limits
of their own instructions, they never would have given occasion for this
reflection on them.
On the score of informal negotiation it will be recollected that from
the earliest days of the Government to the present time, the subject
of impressment has been pressed upon the British Government, not only
in times of war, but in times of peace. If there were in reality any
foundation for the charge on our Government, of having sacrificed
the interest of, or lost a security to, our seamen, by a rejection
of this informal article, it will be only necessary to recur to the
correspondence between our Ministers and the British Commissioners, and
it will be found that not only formal, but informal articles were such as
we ought not to have accepted; that reasonable concessions on our part
were offered for the sake of accommodation and refused; that the Treaty
of 1794 was, in some measure, proposed as the basis, but was not accepted
by the British Ministry. Let me ask the gentleman for a single moment
what were the terms offered in this treaty, which he regrets that the
Government did not accept? Independent of its exceptionable provisions,
it was accompanied by a note which contains a reservation to the British
Government to regulate its own proceedings, and leaves us but two
alternatives--either to declare war against France, or suffer the British
Ministers to rule us. What do they offer us now? If we will trade as
they please, and pay them a duty on all our exports, we may carry on our
commerce. Is it possible that any man who professes himself an American
could accede to this? The spirit of 1776, refusing to pay a duty of two
per cent. on tea, would certainly not now yield that for which they then
contended, and become again tributary to the British Government. This is
not all. Even this admired treaty, which the gentleman from Virginia so
much regrets, allows us to trade to the colonies if we will pay tribute.
Was it not easily discoverable that two, three, four, or five per cent.
would be laid upon the trade, and virtually prohibit us from carrying on
this commerce altogether? It was better than prohibition: but if we would
not tax it, they would prohibit it altogether. What right had they to
demand this? Certainly none, and yet gentlemen wish to raise the embargo,
to embrace these regulations, open all our ports to this fettered
commerce, and will not place it in the power of the Executive to suspend
the embargo. I am a little astonished that gentlemen who consider the
embargo as the heaviest curse which could befall this nation, should be
against any measure for removing its pressure. But so it is. Here permit
me to say that I admire the flexibility of the gentleman’s sentiments.
It must be well known to every gentleman in the House, that a gentleman
from Virginia, in combating measures which were then carried into effect,
as the non-importation law, said, that if we take measures at all, they
should be strong measures; none of your milk-and-water measures, but an
_embargo_; which would be an efficient measure. This same gentleman,
at the present session, exclaims against the Executive influence which
produced the embargo. At this very session we cannot forget the scramble
between him and another gentleman in this House, (Mr. CROWNINSHIELD,)
as to who should have the honor first to propose the measure; he even
urged expedition in the measure, as he had a bill ready prepared. In the
course of deliberation on the subject, he urged it as the only thing
which could promote the national interests; and persisted in this, till
one of his colleagues informed us of the effect which it would have upon
Britain. He then rose and told us that he had done with the measure;
that the measure was partial--not unconstitutional--that it was a new
invention; that it was expressly aimed at Great Britain, and this was
the great objection. But _now_ we are told that the British Government
will ask nothing better of us than giving up the carrying trade. But,
unless the gentleman can prove that they are the carriers for their enemy
and for us, he will find it difficult to prove that it favors England.
Really I am at a loss to see the difference between the proposed measure
and that which the gentleman so long since supported for authorizing
the President of the United States to suspend the non-importation law.
But the gentleman disclaims the influence of precedents. The gentleman
has another objection--that it proceeds from a recommendation from
the Executive. The gentleman took the liberty to pay a compliment to
the President of the United States for declining a re-election; but he
expressed great resentment against those States which solicited him to
retain his station. I consider this as the highest mark of respect for
the course pursued by the present Administration. But it seems, although
totally irrelevant to the subject under discussion, the gentleman from
Virginia has undertaken to question the motives of all who have joined
in the request. The man who has the vanity and arrogance to suppose that
he is superior to all mankind, may boast of his republicanism, but he
possesses none. I envy him not his sensations. It will be recollected
that the constitution has not denied the right of a President, for two
successive terms, again to be elected. The legislatures, then, did not
travel out of their constitutional course, and it would have been as
modest in the gentleman from Virginia--to say no more of it--to have let
the subject alone.
In regard to the constitutionality of this measure, which has been
questioned, the bill supported by the gentleman from Virginia two years
ago, was to enable the President to do a thing at a distant day, if he
should think it expedient. What is the object of the present resolution?
To put the whole commercial interest at the discretion of the President?
Certainly not. If certain events take place, the President is to be
authorized to suspend the operation of the embargo law. We command;
he obeys. He is the agent, we the principal. The law, giving power to
suspend the non-importation law, was more vague than this resolution. In
that he had a perfect discretion, there was no landmark laid down in the
law. Here there is. The distinction taken by the gentleman from Virginia
is a distinction without a difference. The principles of both are the
same. The powers given, and the consequences of the exercise of those
powers, are the same.
But it seems that the gentleman from Virginia has undertaken to arraign
all the measures of Government taken for some time past. A few days
ago he was violently opposed to the raising a military force. At the
present moment he draws consolation from the circumstance that both Great
Britain and France are hostile to us. If he really feels a satisfaction
in the hostile attitude of both powers, he ought certainly not to
complain of the acts which he says have placed us in that situation.
I cannot conceive how a man can with propriety arraign the conduct of
an Administration, when he says their measures have produced the very
effect for which he is so gratified. We learned from his observations
the other day, and it was insinuated again yesterday, that the raising
of an army was against the interest of the country. In 1805 and 1806, he
was in favor of strong measures against Spain, for he said in the same
proportion as we took measures against Spain, Great Britain would respect
our rights; because France and Spain being one and the same, measures
taken against one were also against the other. But the effects of strong
measures seem now to be viewed in a different light. If it was just then
to raise an army against France or Spain to make them respect our rights,
it is certainly proper now to take strong measures against both France
and England, except the gentleman show that the dispositions of nations
as well as of men have changed since that time. At the present time the
military spirit is a horrid thing; at that time, it was a very pleasant
thing.
For a single moment let us consider the embargo. The gentleman says it
is unconstitutional. That the constitution having prohibited the power
of laying a duty on exports, denies the power to prohibit exportation
altogether. There is no difference in this respect between the
non-importation law and the embargo. If the argument be true, you must
allow trade at all times, whether it furnish a means of annoyance against
yourselves or not. Is it not a well-known fact, that Great Britain is in
the utmost want of supplies for that navy which murders your citizens
and blocks up your ports; and, therefore, you partially disarm them.
However gentlemen please themselves and amuse the people--for that will
be its only effect--with the idea that the embargo is a pleasant thing
to Great Britain, we find that, even by the debates in their Parliament,
their orders are considered as measures so hostile, that they expect a
declaration of war. How happens it that we become their apologists? that
their conduct strikes gentlemen on this floor in a more favorable light
than it does the Britons themselves? They consider them as too strong.
These members of Parliament must be much mistaken if some gentlemen in
this House are correct.
To return to the embargo. I believe most religiously, that had it not
been for sentiments expressed in this country so favorable to Great
Britain; had it not been for insinuations that it was impossible for us
to maintain this measure, before this time we should have been treated
with respect by Great Britain. I cannot, while up, but notice what
must be obvious to all--that not only in this House, but abroad, every
attempt has been made to show that this measure is improper, unjust,
and injurious. The table of this House has been loaded with petitions
against the embargo; it is known from what source. Another circumstance
attends them, that, though they come from different quarters, they owe
their existence to one parent, and come from one land. It is very easy
to sow the seeds of discord and discontent, if persons industriously
and insidiously apply themselves to that object. Whenever a measure
has been attempted against Great Britain, we have found what rancorous
opposition it has met with. We are now asked to raise the embargo. What
encouragement have we to do it? The Treaty of 1794 sacrificed our most
important rights. Did it conciliate that Government? Did she even then
respect your rights? From that moment to the present, your flag and
citizens have been constantly violated. More than three, four, or five
thousand seamen, have been impressed into their service. Is it possible
that gentlemen can criminate the Government of the United States for not
accepting a treaty which gave no security against this? Certainly not.
The gentleman told us yesterday that we were contending with a great
commercial nation, and had very little to offer in exchange for what we
ask. Was it necessary to make this apology for Great Britain? I have
thought very differently. Was our commerce of so many millions “nothing?”
Let us now consider the other point which is taken, that the
circumstances attending the treaty alter the aspect of it--for this
treaty is, to say the best of it, no better than Jay’s, which the
gentleman says he so much abhorred. When Jay negotiated his treaty,
almost all Europe was in arms against France; Spain, and Italy, then
independent nations. When this new treaty was formed, Italy, Spain,
Holland, Switzerland, &c., were at the feet of France; and that war which
was engendered at the Court of St. James between Prussia and France was
decided. Prussia was overwhelmed, and the knowledge of it reached our
Ministers before signing this treaty. Germany was at peace. In this
situation, was the attitude of Great Britain so imposing as to justify
greater sacrifices than were made in 1794? It was not. It was believed
and said in this country, that the arms of Bonaparte would conquer the
world. Why, then, make this sacrifice? Had we any assurances, if that
treaty was ratified, it would be held sacred? On the contrary, doubts
were expressed and conditions annexed to it. Has not her conduct since
justified a refusal of more than informal stipulations? At the moment
when she attacked Copenhagen, she had a treaty with Denmark. She first
attacked the town, and then offered terms of accommodation, which were of
course refused. What can be said in justification of that outrage? There
was, as we were told the other day, some supposition that the fleet was
about to be delivered up to France. It was no such thing, sir; it was
justified on the supposition that the Treaty of Tilsit contained some
secret articles, and the British Government did not know what they were.
When she had taken the Danish fleet and burnt the city, she asked the
mediation of Russia to secure a peace between them. Can we believe her
sincere in these things? If she really believed there were such secret
articles, is it natural to believe that she would ask this mediation to
restore friendship between her and the injured nation? If we could not
see a treachery through this mist, we must be blind. But I would not have
noticed the subject, except that a disposition has been manifested to
criminate our Government, and prejudice the minds of the nation, instead
of looking to the real cause.
I should have supposed, after what has been communicated to us, no
one would have accused this Government of a want of justice in its
negotiations with foreign powers. Whoever has read the instructions
of the Secretary of State to our Ministers, must be convinced to the
contrary. Even on the subject of impressments, they were instructed to
press it in such a manner as not even to irritate the feelings of Great
Britain. A peculiar solicitude has been displayed in all our proceedings
to maintain friendship. It has been all in vain. We have been driven to
the last alternative, either to shut up our ports for a while, or to
fight. What do gentlemen now ask? That we should open our ports to Great
Britain alone; for that would be the effect of raising the embargo. Has
it been in the power of our Government to make a settlement? No. Are
gentlemen willing to put up with what has happened? The terms which Great
Britain has offered, it would have disgraced any people to accept. After
she has attacked your national ship, shed the blood of your citizens,
and obliged you to exclude ships of war from your ports, she requires
that you rescind your proclamation before she will even tell you what
satisfaction she is willing to make. She says, I have abused you; humble
yourself, succumb to me, and I will make such satisfaction as I think
fit. This is the nation for whom you are to lift the embargo, and these
the favors you are to receive in return. I had rather see this nation
again tributary to them than sacrifice so great a proportion of their
independence, than acknowledge that all we have done is wrong, and all
they have done is right. I consider that whenever this nation is reduced
to such a state of apathy as to endure these things, our independence is
not worth a straw. You have certain rights--first principles. Recede from
them, and you open yourself to perpetual violation; if persisted in, they
will prostrate your independence. With these sentiments I cannot consent
to repeal the embargo, and the opposition to this resolution seems to be
founded in a wish to do that.
Mr. KEY.--I rise on this occasion with great embarrassment, because
in no instance of my political life, has any measure called on me to
act, in which the interests of my country were more deeply involved. In
common with my fellow-citizens of Maryland, I feel a total aversion to
the continuance of the embargo, and I am confident I speak the almost
unanimous sense of my constituents in calling for its repeal. However
proper some of them might have considered it in the first instance, as
an experiment from which good might result, yet all now are satisfied
that nothing short of its immediate repeal will save them from great
distress, and that a long continuance of it will induce bankruptcy and
ruin. I am willing, sir, to admit, that those who advocated the embargo
were actuated by the purest motives, and had the best interests of their
country at heart--that they adopted it as a measure from which great
permanent good would result; but time, which tests the correctness of
political measures, has sufficiently elapsed to convince them of their
error--at least it has impressed on my mind a conviction, that we deeply
suffer, whilst those it was intended to operate on, lightly feel its
effects. I was originally opposed to the measure--I still am opposed to
it; although I anxiously wish its immediate repeal, yet I am compelled
to vote against the present resolution, because in my heart and judgment
I believe it is so worded as to violate, if adopted, the Constitution of
the United States--and that I am unwilling to let the repeal of this law
depend on contingencies, not known or designated and which are to grow
out of the acts of foreign Governments.
An honorable gentleman from Virginia, (Mr. LOVE,) who originally voted
for the measure, has this day admitted it to be a curse. I concur
with him, as I hope he will now with me, in a vote and prayer for its
speedy removal. I believe the embargo to be partial in its operation,
oppressive, and, if persisted in, ruinous to the country. These are
strong terms, but if gentlemen will lend a patient ear, I will endeavor
to convince them of their truth, and I will use as much brevity as
is consistent with perspicuity. The view I take of this subject is
extensive, but I hope not diffusive.
The resolution proposes to vest the President with power, on the
happening of certain European events, to suspend the embargo law.
I am against it, because I want an immediate repeal, because it is
unconstitutional to vest the President with power to suspend a law, and
because it is partial in its operation, oppressive, and ruinous.
It is partial in its operation in two respects--first as it regards the
persons on whom it operates, and secondly, as it respects the product
operated on.
The district I have the honor to represent is not bounded on navigable
water. So far then as it respects my constituents, (and many other
districts of different States are in the same situation,) the law
executes itself with rigor. From their geographical position, they
are excluded the means of selling their surplus produce, while this
very law operates as a bounty in effect to the citizens of other parts
of the United States. I call the attention of the committee to the
northern parts of the State of New York. That State binds on Lake Erie
to Niagara, on the whole extent of Lake Ontario, on a great part of
the river St. Lawrence, and the Lakes Champlain and George, and has an
immediate, direct, easy communication with the British, in Upper and
Lower Canada. The whole Genessee country, and the counties lower down,
have a steady, constant market, the prices tempting, the access easy, and
few or no officers to interrupt the daily supplies given to their British
neighbors. We cannot shut our eyes to the fact of this commerce being
steadily carried on.
The embargo, so far as it restrains places from exporting their
surplus produce, goes to enhance the price of such produce in foreign
markets--the enhanced price affords the temptation, and the easy
access gives the means to that country to export it, and in fact, by
excluding others, gives them a monopoly of supply. Near four hundred
miles of northern coast, in proximity to the British settlements, gives
to New York upon the lakes a steady market. Vermont binds on lakes which
communicate with Canada. Passamaquoddy openly and publicly furnishes
supplies to New Brunswick. In this state of things, and in the mode the
law is executed, it is partial and oppressive, and my constituents and
others in similar locations so feel and experience it.
But, sir, there is another portion of our fellow-citizens, on whom this
law executes itself with peculiar severity, I mean the frugal, hardy,
laborious and valuable fishermen of the Eastern States. I see gentlemen
smile at a member of the Middle States supporting the interests of the
fishermen; but, sir, I should think myself illy entitled to a seat in
this House, if I did not know the value of that class of men to society
and the Union. I wish, sir, their numbers, character, and usefulness,
were better known and understood than I fear they are. And as on this
subject my opinions may not be orthodox, I will refer to the head of the
church.
Mr. Chairman, in the year 1791, the now President of the United States,
then Secretary of State, made an able and luminous report on our
fisheries. These are his words: first, as to the annual value of a
fisherman’s labor, secondly, as to the situation and value of the whale
fishery as carried on from a sand bar--
“About 100 natives on board 17 ships (for there were 150
Americans engaged by the voyage) came to 2,255 livres, or about
$416 66 a man.”
“The American whale fishery is principally followed by the
inhabitants of the island of Nantucket--a sand bar of about
fifteen miles long and three broad--capable of maintaining
by its agriculture about twenty families; but it employed on
the fisheries, before the war, between five and six thousand
men and boys; and in the only harbor it possesses it had one
hundred and forty vessels--one hundred and thirty-two of which
were of the large kind--as being employed in the southern
fishery. In agriculture, then, they have no resources; and
if that of their fishery cannot be pursued from their own
habitations, it is natural they should seek others from which
it can be followed, and prefer those where they will find a
sameness of language, religion, laws, habits, and kindred. A
foreign emissary has lately been among them, for the purpose
of renewing the invitations to a change of situation; but,
attached to their native country, they prefer continuing in
it, if their continuance there can be made supportable.”--_Mr.
Jefferson’s report, January 10, 1791, on the subject of the
fisheries._
I call the attention of the committee to every letter of this report, and
then let each member ask himself the situation of the fishermen under the
embargo law.
Sir, by the Treasury report laid on our desks it appears that the
exportation of dried fish alone, in the last year, amounted to
473,924 quintals; and the whole product of the fisheries amounted
to $2,300,000--a sum equal to the one-eighteenth part of the whole
agricultural produce of the United States: thus in effect, in point of
product, adding another State to the Union. Is this class of men, whose
farm is the ocean and whose crop is its fish, to have their whole or
nearly their whole interests sacrificed by the unequal operation of the
embargo? I hope not, sir. I trust gentlemen will see the oppression of
the law, and its partial operation, and remove it.
Again, sir, as, to the product, how does this law operate? The cotton
planter and the tobacco planter have their articles little deteriorated
by time. The embargo, to them, suspends the use of their capital only;
but to those who have flour or fish, the embargo, if continued for a few
months, destroys their capital--the thing itself. In this respect the
embargo works partially; and in reference to its operation on particular
portions of our country, on particular classes of people, or on the
product, it ought to be repealed at once, and without delay.
Sir, it is a very remarkable fact, and not more remarkable than true,
that if you compare the number of fishermen with the product of their
labor, and the number employed in agriculture with the product of
agriculture, that the value of the former to the latter is as ten to
one--a people whose habits and manners are in consonance with republican
institutions, and who are as valuable as the agriculturists. God has
given them a noble estate in the ocean, most bountifully stocked, and
diligently do they work it, with profit to themselves and advantage to
their country.
THURSDAY, April 14.
_Suspension of the Embargo._
Mr. D. R. WILLIAMS felt that the question which was about to be
decided was one of so much importance, every member of the House must
be specially responsible for his vote on it; and, laboring under that
responsibility, he felt it a duty to state some of the reasons for the
vote he should give. I shall vote against the resolution, said Mr. W.,
and in so doing shall not be influenced by the reasons assigned by my
friend from Virginia, (Mr. RANDOLPH,) nor by those of the gentleman from
Maryland. When this resolution was first presented to us, I felt very
much inclined to vote for it; but upon considering it more maturely I
cannot. This I regret exceedingly, because I shall perhaps differ from
a large majority of the friends to the embargo. Gentlemen themselves
who advocate it, if all the consequences which certainly attach to it
are deliberately considered, will I hope give it up. What is the object
of the resolution, or rather of the embargo itself, for I presume it is
intended either to fix the day or the circumstances on which it shall
be suspended? [Mr. RANDOLPH observed that while up he had forgot to
propose an amendment to the resolution so as to declare it expedient
to repeal the embargo.] No, sir, said Mr. W., it is not expedient. This
amendment, however, has cut in upon me unexpectedly; but as the debate
has heretofore been a kind of general battle, partaking of war, army,
embargo, treaty, resolution, and amendment,--I shall be in order on any
point, it has taken so wide a range.
The resolution is pernicious, and for this reason: the embargo is not
designed to affect our own citizens, though I confess it operates hard on
them; but to make an impression on Europe; and beyond all question, the
firmer you stand, the more likely is your measure to have effect. What
is the opinion inferable from the adoption of such a resolution? Does it
not tell the belligerent powers of Europe with whom you are contending,
that you are tired of the embargo; that you are sick of it, and will
accept any modification of their general principles (I would rather say
practice, for they have no principle) so hostile to your neutral rights,
rather than submit to it any longer? I hope this consideration will have
weight with gentlemen, who, like myself, are friendly to the embargo,
for assuredly it is entitled to it. Besides, are gentlemen aware of the
embarrassment they will not be able to avoid in framing a law on such
a subject? It will be scarcely possible to define the circumstances on
which you will permit the suspension to take place, without incurring
one of two risks; either too precise to admit the President’s acting,
for being a law its letter must be fulfilled, or so general as to invest
him with a discretionary power altogether inexpedient. I cannot conceive
a situation more disagreeable than would be the President’s with such
a power. Though I subscribe to what I consider the sound part of the
declarations of the gentleman from Virginia, (Mr. RANDOLPH,) the other
day, as to the tendency this resolution will have to throw a monstrous
and unusual power into the hands of the President, yet I do not believe
it unconstitutional; nor can I subscribe to the arguments of my friend
with respect to the constitutionality of the laws laying an embargo;
for, sir, if they prove any thing they prove quite too much; and did I
possess but a moiety of the eloquence and ability of that gentleman, I
could certainly confute them. I contend that the power to lay an embargo
is granted in the power “to regulate commerce with foreign nations, and
among the several States, and with the Indian tribes.” If you cannot
prohibit commerce with a particular port or nation, of what avail is the
power to regulate it? The law prohibiting all trade with St. Domingo
is authorized by the same clause of the constitution, and yet it never
was supposed to be unconstitutional. Will it be questioned that you
can prohibit exportation from the United States in the vessels of any
particular nation? Will it be questioned that you have a right to exclude
foreigners from trading with the Indian tribes within your jurisdictional
limits? Most assuredly you have these rights, and all derived from
the same general power to regulate commerce. The embargo is not an
annihilation, but a suspension of commerce, to regain the advantages
of which it has been robbed; it follows that it is a constitutional
regulation of commerce. The gentleman read my name among others in the
negative on the passage of the section in the bill to authorize the
President to suspend the non-importation law. I will not undertake to say
what were the reasons of the gentleman for voting against that section,
but I know that my reason was, it vested the President of the United
States with power to suspend the law at the time when we ourselves should
be in session. I thought then as I do now, that it is inexpedient, under
any circumstances, to give the President power to suspend the operation
of a law during the session of Congress.
Mr. G. W. CAMPBELL said, I will now return to the subject before the
House. The gentleman last up, (Mr. D. R. WILLIAMS,) has rendered it
unnecessary for me to enter into a discussion of a part of this subject,
which might otherwise have claimed more particular notice. With that
gentleman I agree, in almost every thing he has said, except as to the
effect which this resolution would have upon foreign nations. If I had
supposed that this measure held out to foreign powers the slightest
pretext for believing that we are so tired of the embargo as to be
induced to repeal it, under any circumstances whatever, except such as
are consistent with the honor and dignity of the nation, I would be the
last man to propose it to this House. But under a conviction that this
resolution can have no such effect, that it holds to foreign powers a
language directly opposite to this, and that they will see in it the
only object which its supporters can be fairly supposed to have, to
put it in the power of the Executive to remove, a pressure, as soon as
circumstances will render it proper, which is acknowledged to bear hard
on the American people, and must continue so to do so long as the causes
that produce it remain unchanged, I have brought it before the House,
and under this impression alone am I disposed to support it. So far,
sir, from thinking that it will induce foreign nations to believe we
are disposed to remove the embargo, before the causes that produced it
are first withdrawn, I am clearly of opinion that this resolution will
convince them that we are determined the embargo laws never shall be
repealed, until they revoke their orders and decrees, or until we shall
have determined to appeal to war, the last resort of an injured nation.
They will see, in this measure, what is believed to be the true principle
that ought to direct our conduct--a firm determination to persevere in
the embargo until they are brought to a sense of justice, or until that
crisis in our affairs has arrived, that will make it our interest and
our duty to resort to arms in vindication of those rights which have
been so grossly violated--and then the embargo may not be necessary. War
and an embargo at the same time are seldom supposed to be necessary;
an embargo frequently precedes war, but scarcely ever accompanies it.
These remarks are made, because so many misrepresentations have gone
abroad with respect to the objects, the effects, and probable duration
of the embargo, and the views of those who imposed it. Some considered
its operations directed against one nation alone, to wit, Great Britain;
while others of the same party declared it could do that power no injury.
The first of these positions is not founded on any facts to support it,
the laws imposing the embargo being general in their operation; and the
result, as far as we can judge from the best information that has yet
reached us from that nation, proves the latter to be totally incorrect.
Some pretended to state it as a measure that was to be permanent, and
forever unalterable, and on that ground opposed it; while others on
the same side pronounced it a temporary expedient, a mere chimerical
experiment, that was not designed to be persevered in for any time, and
therefore declared it useless, and likely to produce no good. In answer
to such contradictory objections, it would seem almost unnecessary to
say any thing. The one would appear to destroy the other. Those who
made them have been equally incorrect in stating the views of those who
imposed the embargo, as they have been unfortunate and inconsistent in
the grounds upon which they have opposed it. No one could reasonably
suppose the embargo was intended to remain forever, to be a permanent,
unalterable measure, or to continue longer than the existence of the
causes that produced it. Neither ought it to be supposed that it
would be removed during the existence of those causes, unless some
alternative was resorted to in its place. These representations, or
rather misrepresentations, are therefore futile, not founded in fact, and
calculated only to deceive and mislead the public mind.
The objects of the embargo have already been stated to you. These were,
among others, to take a stand previous to an expected war, to prepare
the nation to meet it; to collect and preserve at home our resources
and our seamen, from being captured by foreign powers; to produce a
pressure on those foreign powers, that might make them sensible of the
advantages they derived from our trade, and, by making them feel the
want of it, bring them to a just estimate of their own interests, and a
sense of justice toward us; and also to pause for a short time in order
to determine what system we ought to pursue. These were, it is believed,
the principal objects of the embargo. The time has not yet arrived that
puts it in the power of this nation decisively to determine with which of
the belligerent powers we must go to war, if, indeed, it be necessary to
go to war with either. The conduct of those powers has not been such as
to induce us to consider either the one or the other friendly disposed
toward us--and it might be hazarding too much to go to war with both
at the same time. It is not, therefore, the proper time, either on the
ground of peace or on that of war, to remove the embargo, as has been
insisted upon by those who have been opposed to the measure. But it
has been contended by some who are friendly to the embargo, that the
resolution before you holds out to the belligerent powers a ground for
believing that we will repeal the embargo laws, without any change being
first made in their measures relative to our commerce. I am unable to
see any thing in the resolution that justifies such an opinion, or that
presents to those powers any prospect of their removing the embargo,
until they revoke their orders and decrees, or change them in such a
manner as to render our commerce safe. What does the resolution say
to the belligerent powers? Is not its language clear and explicit? It
says to them you must act first, before the embargo shall be removed.
The Council of the Nation have solemnly so determined; your orders
and decrees have produced the embargo, and it shall continue until
you withdraw them. It is announcing to those nations in the strongest
language in our power that we are determined not to shrink from the
ground we have taken; that we will not relinquish the measures we have
adopted, until they first withdraw their measures so destructive to our
commerce, and then the embargo shall be removed--then the commercial
world will be unshackled, and trade restored to its usual channels, to
its full liberty. This resolution will turn the eyes of the American
people to the real source of their present difficulties--the conduct of
the belligerent powers, in passing their orders and decrees, by which
they have bound in chains or rather annihilated the commerce of the
civilized world; in these they will see the true cause of the embargo,
the reasons that render it essentially necessary to save our trade from
certain ruin; and to these they must look to unbind the chains and permit
trade to return to its usual channels, and pursue its natural course. On
these grounds, and with this view, this measure was brought forward, and
is now supported by me.
FRIDAY, April 15.
_Death of Mr. Crowninshield._
As soon as the Journal was read--
Mr. BACON said: I rise with feelings of the deepest sensibility, to
perform a solemn and painful duty. It is to announce to the House the
death of my friend and colleague, Mr. CROWNINSHIELD, who expired this
morning at six o’clock.
Whereupon, on motion of Mr. FISK,
_Resolved, unanimously_, That a committee be appointed to take
order for superintending the funeral of JACOB CROWNINSHIELD,
late a Representative from the State of Massachusetts.
_Ordered_, That Mr. CUTTS, Mr. TAGGART, Mr. QUINCY, Mr. COOK, Mr. GREEN,
Mr. ELY, and Mr. BACON, be appointed a committee, pursuant to the said
resolution.
On motion of Mr. D. R. WILLIAMS,
_Resolved, unanimously_, That the members of this House will
testify their respect for the memory of JACOB CROWNINSHIELD,
late one of their body, by wearing crape on the left arm for
one month.
On motion of Mr. NEWTON,
_Resolved, unanimously_, That the members of this House will
attend the funeral of the late JACOB CROWNINSHIELD, to-morrow
morning at ten o’clock.
On motion of Mr. SMILIE,
_Resolved, unanimously_, That a message be sent to the Senate
to notify them of the death of JACOB CROWNINSHIELD, late a
member of this House, and that his funeral will take place
to-morrow morning at ten o’clock.
SATURDAY, April 16.
The House met at nine o’clock, and after reading the Journal, adjourned
till twelve o’clock, in order to attend the funeral of Mr. CROWNINSHIELD.
The House met accordingly at twelve o’clock.
TUESDAY, April 19.
_Suspension of the Embargo._
Mr. RANDOLPH said that they had lately gotten into a strange habit of
calling things by their wrong names. The other day, said he, we received
a bill from the Senate for making an addition to the Peace Establishment,
without limitation; we christened the bill by the style and title of a
bill to raise for a limited time an additional military force. Here is
a bill authorizing the President of the United States, under certain
conditions, to suspend the operation of the embargo; and for certain
conditions certainly none ever were nearer uncertainty than these are.
What are the conditions? They are not positive, and of these, such as
they are, the President at last is to determine. The President, under
certain conditions, is to suspend the embargo, and when you inquire what
those conditions are, you find them uncertainties--contingencies of
which, when they happen, he is the sole and exclusive judge. Now if we do
authorize the President to suspend the embargo under certain conditions,
let us ascertain them. Let them not be uncertain. Let him not have a
discretion whether he will suspend the embargo or not.
It is not my purpose now to recapitulate my former argument on this
subject; but I do say that if the President of the United States is
to have a discretion at all, it ought to be absolute and unqualified,
not only substantially so, but nominally so; and the objection to this
bill is, that under the pretence of qualification to discretion, under
the mask (not by this intending any disrespect to the other branch of
the Legislature) of restricting the power, you do in fact give him an
unqualified power; and no gentleman who reads the bill can for a moment
hesitate to acknowledge the correctness and soundness of the doctrine. I
rise not so much to enter into discussion (for I feel myself unable) as
to offer an amendment, which, if it be lost in Committee of the Whole, I
will reiterate in the House to ascertain its sense. I move therefore to
strike out from the enacting clause in the first section to the end of it
and insert:
“That the act laying an embargo on all ships and vessels in
the ports and harbors of the United States, and the several
acts supplementary thereto, shall be repealed, so far as they
prohibit trade with France and her dependencies, and States
associated in common cause with her, as soon as the United
States shall be exempted from the operation of her decrees of
the 21st November, 1806, and December, 1807, and the President
of the United States shall have officially been notified
thereof, and shall have received assurances that the existing
stipulations between the United States and France will be
respected by her.
“_And be it further enacted_, That the said acts shall be
repealed, so far as they prohibit trade with Great Britain,
her dependencies, and States associated in common cause with
her, as soon as her Orders of Council of November last shall
be revoked, so far as they affect the commerce of the United
States, and the President of the United States shall have
received official assurances thereof, and that the neutral
rights of the United States shall be respected by them. And
the President of the United States shall be and he is hereby
authorized and required, on the receipt of such assurances from
either of the two belligerents, to notify the same forthwith
by proclamation; whereupon the embargo shall be removed in
regard to such belligerents. And if such assurances be received
from both belligerents, proclamation shall in like manner be
forthwith issued; whereupon the acts aforesaid, and the several
acts supplementary thereto, shall cease and determine.”
I will state in a few words why I have not inserted in that amendment
any condition respecting reparation for the affair of the Chesapeake.
It was not because the bill from the Senate contains no such principle;
but because the embargo has never been considered, that I recollect,
certainly it was not so considered by the gentleman who moved the
resolution, as a reaction on our part in consequence of that outrage;
because the step was not taken till some time after that outrage; and
because it was taken before we knew whether reparation would be made
for the outrage or not. In fact it was never said by any gentleman who
advocated it, to have any connection with that transgression, which stood
on its own demerits. The embargo grew out of the French decrees and
British proclamations, and if justified by the British proclamation, was
assuredly yet more justified by the Orders of Council which followed it.
It was then a measure intended to meet the aggressions on our commerce
by the two belligerents; and not a measure of resentment in consequence
of the aggression on the Chesapeake. It is therefore that I have thought
proper not to mingle subjects which at all times ought to have been, and
I understand now are kept separate and distinct.
Mr. QUINCY.--Mr. Chairman, the amendment proposed to this bill by the
gentleman from Virginia (Mr. RANDOLPH) has for its object to limit the
Executive discretion in suspending the embargo to certain specified
events--the removal of the French decrees; the revocation of the British
Orders. It differs from the bill, as it restricts the range of the
President’s power to relieve the people from this oppressive measure. In
this point of view, it appears to me even more objectionable than the
bill itself. To neither can I yield my sanction. And as the view which
I shall offer will be different from any which has been taken of this
subject, I solicit the indulgence of the committee.
A few days since, when the principle of this bill was under discussion,
in the form of a resolution, a wide field was opened. Almost every
subject had the honors of debate except that which was the real object
of it. Our British and French relations, the merits and demerits of the
expired and rejected treaty, as well as those of the late negotiators,
and of the present Administration; all were canvassed. I enter not upon
these topics. They are of a high and most interesting nature; but their
connection with the principle of this bill is, to say the least, remote.
There are considerations intimately connected with it, enough to interest
our zeal and to awaken our anxiety.
The question referred to our consideration is, shall the President be
authorized to suspend the embargo on the occurrence of certain specified
contingencies? The same question is included in the proposed amendment
and the bill. Both limit the exercise of the power of suspension of the
embargo to the occurrence of certain events. The only difference is, that
the discretion given by the former is more limited; that given by the
latter is more liberal.
In the course of the former discussion a constitutional objection was
raised which, if well founded, puts an end to both bill and amendment.
It is impossible, therefore, not to give it a short examination. It was
contended that the constitution had not given this House the power to
authorize the President at his discretion to suspend a law. The gentleman
from Maryland (Mr. KEY) and the gentleman from Virginia, (Mr. RANDOLPH,)
both of great authority and influence in this House, maintained this
doctrine with no less zeal than eloquence. I place my opinion, with
great diffidence, in the scale, opposite to theirs. But as my conviction
is different, I must give the reasons for it--why I adhere to the old
canons; those which have been received as the rule, both of faith and
practice, by every political sect which has had power, ever since the
adoption of the constitution, rather than to these new dogmas.
The Constitution of the United States, as I understand it, has in every
part reference to the nature of the things and the necessities of
society. No portion of it was intended as a mere ground for the trial
of technical skill or verbal ingenuity. The direct, express powers,
with which it invests Congress, are always to be so construed as to
enable the people to attain the end for which they were given. This is
to be gathered from the nature of those powers, compared with the known
exigencies of society and the other provisions of the constitution. If a
question arise, as in this case, concerning the extent of the incidental
and implied powers vested in us by the constitution, the instrument
itself contains the criterion by which it is to be decided. We have
authority to make “laws necessary and proper for carrying into execution”
powers unquestionably vested. Reference must be had to the nature of
these powers to know what is “necessary and proper” for their wise
execution. When this necessity and propriety appear, the constitution
has enabled us to make the correspondent provisions. To the execution
of many of the powers vested in us by the constitution, a discretion is
necessarily and properly incident. And when this appears from the nature
of any particular power, it is certainly competent for us to provide by
law that such a discretion shall be exercised. Thus, for instance, the
power to borrow money must in its exercise be regulated, from its very
nature, by circumstances, not always to be anticipated by the Legislature
at the time of passing a law authorizing a loan. Will any man contend
that the Legislature is necessitated to direct either absolutely that a
certain sum shall be borrowed, or to limit the event on which the loan
is to take place? Cannot it vest a general discretion to borrow or not
to borrow, according to the view which the Executive may possess of the
state of the Treasury, and of the general exigencies of the country,
particularly in cases where the loan is contemplated at some future
day, when perhaps Congress is not in session, and when the state of the
Treasury, or of the country, cannot be foreseen? In the case of the two
millions appropriated for the purchase of the Floridas, such a discretion
was invested in the Executive. He was authorized, “if necessary, to
borrow the sum, or any part thereof.” This authority he never exercised,
and thus, according to the argument of gentlemen on the other side, he
has made null a legislative act. For so far as it depended upon his
discretion, this not being exercised, it is a nullity. The power “to pay
the debts of the United States” will present a case in which, from the
nature of the power, a discretion to suspend the operation of a law may
be necessary and proper to its execution. Congress by one law direct the
executive to pay off the eight per cent. stock. Will gentlemen seriously
contend that by another it may not invest him with a general discretion
to stop the payment; that is, to suspend the operation of the former
law, if the state of the Treasury, or even more generally if the public
good should in his opinion require it? An epidemic prevails in one of
our commercial cities; intercourse is prohibited with it; Congress is
about to terminate its session, and the distemper still rages. Can it be
questioned, that it is within our constitutional power to authorize the
President to suspend the operation of the law, whenever the public safety
will permit? Whenever, in his opinion, it is expedient? The meanest
individual in society, in the most humble transactions of business, can
avail himself of the discretion of his confidential agent, in cases where
his own cannot be applied. Is it possible that the combined wisdom of the
nation is debarred from investing a similar discretion, whenever, from
the nature of the particular power, it is necessary and proper to its
execution?
The power of suspending laws, against which we have so many warnings in
history, was a power exercised contrary to the law, or in denial of its
authority, and not under the law and by virtue of its express investment.
Without entering more minutely into the argument, I cannot doubt but
that Congress does possess the power to authorize the President by law
to exercise a discretionary suspension of a law. A contrary doctrine
would lead to multiplied inconveniences; and would be wholly inconsistent
with the proper execution of some of the powers of the constitution. It
is true that this, like every other power, is liable to abuse. But we
are not to forego a healthy action, because, in its excess, it may be
injurious.
The expediency of investing the Executive with such an authority, is
always a critical question. In this case, from the magnitude of the
subject, and the manner in which the embargo oppresses all our interests,
the inquiry into our duty in relation to it, is most solemn and weighty.
It is certain some provision must be made touching the embargo, previous
to our adjournment. A whole people is laboring under a most grievous
compression. All the business of the nation is deranged. All its active
hopes are frustrated. All its industry stagnant. Its numerous products
hastening to their market, are stopped in their course. A dam is thrown
across the current, and every hour the strength and the tendency towards
resistance is accumulating. The scene we are now witnessing is altogether
unparalleled in history. The tales of fiction have no parallel for
it. A new writ is executed upon a whole people. Not, indeed, the old
monarchical writ, _ne exeat regum_, but a new republican writ, _ne exeat
rempublicam_. Freemen, in the pride of their liberty, have restraints
imposed on them, which despotism never exercised. They are fastened down
to the soil by the enchantment of law; and their property vanishes in the
very process of preservation. It is impossible for us to separate and
leave such a people, at such a moment as this, without administering some
opiate to their distress. Some hope, however distant, of alleviation must
be proffered; some prospect of relief opened. Otherwise, justly might
me fear for the result of such an unexampled pressure. Who can say what
counsels despair might suggest, or what weapons it might furnish?
Some provision then, in relation to the embargo, is unavoidable. The
nature of it, is the inquiry. Three courses have been proposed--to
repeal it; to stay here and watch it; to leave with the Executive the
power to suspend it. Concerning repeal I will say nothing. I respect the
known and immutable determination of the majority of this House. However
convinced I may be, that repeal is the only wise and probably the only
safe course, I cannot persuade myself to urge arguments which have been
often repeated, and to which, so far from granting them any weight, very
few seem willing to listen. The end to which I aim will not counteract
the settled plan of policy. I consider the embargo as a measure from
which we are not to recede, at least not during the present session. And
my object of research is, in what hands, and under what auspices it shall
be left, so as best to effect its avowed purpose and least to injure the
community. Repeal, then, is out of the question. Shall we stay by and
watch? This has been recommended. Watch! What? “Why, the crisis!” And do
gentlemen seriously believe that any crisis, which events in Europe are
likely to produce will be either prevented or meliorated, by such a body
as this, remaining, during the whole summer, perched upon this bill?
To the tempest which is abroad we can give no direction; over it we
have no control. It may spend its force on the ocean, now desolate by
our laws, or it may lay waste our shores. We have abandoned the former,
and for the latter, though we have been six months in session, we have
prepared no adequate shield. Besides, in my apprehension, it is the
first duty of this House to expedite the return of its members to their
constituents. We have been six months in continued session. We begin, I
fear, to lose our sympathies for those whom we represent. What can we
know, in this wilderness, of the effects of our measures upon civilized
and commercial life? We see nothing, we feel nothing, but through the
intervention of newspapers, or of letters. The one obscured by the filth
of party; the other often distorted by personal feeling or by private
interest. It is our immediate, our indispensable duty, to mingle with
the mass of our brethren and by direct intercourse to learn their will;
to realize the temperature of their minds; to ascertain their sentiments
concerning our measures. The only course that remains is to leave with
the Executive the power to suspend the embargo. But the degree of power
with which he ought to be vested, is made a question. Shall he be limited
only by his sense of the public good, to be collected from all the
unforeseen circumstances which may occur during the recess; or shall it
be exercised only on the occurrence of certain specified contingencies?
The bill proposes the last mode. It also contains other provisions
highly exceptionable and dangerous; inasmuch as it permits the President
to raise the embargo, “_in part or in whole_,” and authorizes him to
exercise an unlimited discretion as to the penalties and restrictions
he may lay upon the commerce he shall allow. My objections to the bill,
therefore, are--first, that it limits the exercise of the Executive as
to the whole embargo, to particular events, which if they do not occur,
no discretion can be exercised, and let the necessity of abandoning the
measure be, in other respects, ever so great, the specified events not
occurring, the embargo is absolute at least until the ensuing session;
next, that if the events do happen, the whole of the commerce he may in
his discretion set free, is entirely at his mercy; the door is opened to
every species of favoritism, personal or local. This power may not be
abused; but it ought not to be trusted. The true, the only safe ground
on which this measure, during our absence, ought to be placed is, that
which was taken in the year 1794. The President ought to have authority
to take off the prohibition, whenever, in his judgment, the public good
shall require; not partially, not under arbitrary bonds and restrictions;
but totally, if at all. I know that this will be rung in the popular
ear, as an unlimited power. Dictatorships, protectorships, “shadows dire
will throng into the memory.” But let gentlemen weigh the real nature of
the power I advocate, and they will find it not so enormous as it first
appears, and in effect much less than the bill itself proposes to invest.
In the one case he has the simple and solitary power of raising or
retaining the prohibition, according to his view of the public good. In
the other he is not only the judge of the events specified in the bill,
but also of the degree of commerce to be permitted, of the place from
which and to which it is to be allowed; he is the judge of its nature,
and has the power to impose whatever regulation he pleases. Surely there
can be no question but that the latter power is of much more magnitude
and more portentous than the former. I solicit gentlemen to lay aside
their prepossessions and to investigate what the substantial interest of
this country requires; to consider by what dispositions this measure may
be made least dangerous to the tranquillity and interests of this people;
and most productive of that peculiar good, which is avowed to be its
object. I address not those who deny our constitutional power to invest a
discretion to suspend, but I address the great majority, who are friendly
to this bill, who, by adopting it, sanction the constitutionality of the
grant of fresh authority to whom, therefore, the degree of discretion
is a fair question of expediency. In recommending that a discretion,
not limited by events, should be vested in the Executive, I can have
no personal wish to argument his power. He is no political friend of
mine. I deem it essential, both for the tranquillity of the people and
for the success of the measure, that such a power should be committed
to him. Neither personal nor party feelings shall prevent me from
advocating a measure, in my estimation, salutary to the most important
interests of this country. It is true that I am among the earliest and
the most uniform opponents of the embargo. I have seen nothing to vary
my original belief, that its policy was equally cruel to individuals
and mischievous to society. As a weapon to control foreign powers, it
seemed to me dubious in its effect, uncertain in its operation; of all
possible machinery the most difficult to set up, and the most expensive
to maintain. As a mean to preserve our resources, nothing could, to my
mind, be more ill adapted. The best guarantees of the interest society
has in the wealth of the members which compose it, are the industry,
intelligence, and enterprise of the individual proprietors, strengthened
as they always are by knowledge of business, and quickened by that which
gives the keenest edge to human ingenuity--self-interest. When all the
property of a multitude is at hazard, the simplest and surest way of
securing the greatest portion, is not to limit individual exertion, but
to stimulate it; not to conceal the nature of the exposure, but, by
giving a full knowledge of the state of things, to leave the wit of every
proprietor free, to work out the salvation of his property, according
to the opportunities he may discern. Notwithstanding the decrees of the
belligerents, there appeared to me a field wide enough to occupy and
reward mercantile enterprise. If we left commerce at liberty, we might,
according to the fable, lose some of her golden eggs; but if we crushed
commerce, the parent which produced them, with her our future hopes
perished. Without entering into the particular details whence these
conclusions resulted, it is enough that they were such as satisfied my
mind as to the duty of opposition to the system, in its incipient state,
and in all the restrictions which have grown out of it. But the system is
adopted. May it be successful! It is not to diminish, but to increase the
chance of that success, I urge that a discretion, unlimited by events,
should be vested in the Executive. I shall rejoice if this great miracle
be worked. I shall congratulate my country, if the experiment shall
prove, that the old world can be controlled by fear of being excluded
from the commerce of the new. Happy shall I be, if on the other side of
this dark valley of the shadow of death, through which our commercial
hopes are passing, shall be found regions of future safety and felicity.
Among all the propositions offered to this House, no man has suggested
that we ought to rise and leave this embargo until our return, pressing
upon the people, without some power of suspension vested in the
Executive. Why this uniformity of opinion? The reason is obvious; the
greatness of comparison. If the people were left six months without
hope, no man could anticipate the consequences. All agree that such an
experiment would be unwise and dangerous. Now, precisely the same reasons
which induce the majority not to go away without making some provision
for its removal, on which to feed popular expectation, is conclusive in
my mind that the discretion proposed to be invested should not be limited
by contingencies.
The embargo power, which now holds in its palsying gripe all the hopes of
this nation, is distinguished by two characteristics of material import,
in deciding what control shall be left over it during our recess. I
allude to its greatness and its novelty.
As to its greatness, nothing is like it. Every class of men feels it.
Every interest in the nation is affected by it. The merchant, the farmer,
the planter, the mechanic, the laboring poor; all, are sinking under its
weight. But there is this peculiar in it, that there is no equality in
its nature. It is not like taxation, which raises revenue according to
the average of wealth; burdening the rich and letting the poor go free.
But it presses upon the particular classes of society, in an inverse
ratio to the capacity of each to bear it. From those who have much it
takes, indeed, something. But from those who have little, it takes all.
For what hope is left to the industrious poor, when enterprise, activity,
and capital are proscribed their legitimate exercise? This power
resembles not the mild influences of an intelligent mind, balancing the
interests and condition of men, and so conducting a complicated machine
as to make inevitable pressure bear upon its strongest parts. But it is
like one of the blind visitations of nature; a tornado or a whirlwind.
It sweeps away the weak; it only strips the strong. The humble plant,
uprooted, is overwhelmed by the tempest. The oak escapes with the loss of
nothing except its annual honors. It is true the sheriff does not enter
any man’s house to collect a tax from his property. But want knocks at
his door and poverty thrusts his face into the window. And what relief
can the rich extend? They sit upon their heaps and feel them moulding
into ruins under them. The regulations of society forbid what was once
property, to be so any longer. For property depends on circulation;
on exchange; on ideal value. The power of property is all relative.
It depends not merely upon opinion here, but upon opinion in other
countries. If it be cut off from its destined market, much of it is worth
nothing, and all of it is worth infinitely less than when circulation is
unobstructed.
This embargo power is therefore of all powers the most enormous, in the
manner in which it affects the hopes and interests of a nation. But its
magnitude is not more remarkable than its novelty. An experiment, such as
is now making, was never before--I will not say tried--it never before
entered into the human imagination. There is nothing like it in the
narrations of history or in the tales of fiction. All the habits of a
mighty nation are at once counteracted. All their property depreciated.
All their external connections violated. Five millions of people are
engaged. They cannot go beyond the limits of that once free country;
now they are not even permitted to thrust their own property through
the grates. I am not now questioning its policy, its wisdom, or its
practicability, I am merely stating the fact. And I ask if such a power
as this, thus great, thus novel, thus interfering with all the great
passions and interests of a whole people, ought to be left for six months
in operation, without any power of control, except upon the occurrence
of certain specified and arbitrary contingencies? Who can foretell when
the spirit of endurance will cease? Who, when the strength of nature
shall outgrow the strength of your bonds? Or if they do, who can give a
pledge that the patience of the people will not first be exhausted? I
make a supposition, Mr. Chairman--you are a great physician; you take
a hearty, hale man, in the very pride of health, his young blood all
active in his veins, and you outstretch him on a bed; you stop up all his
natural orifices, you hermetically seal down his pores, so that nothing
shall escape outwards, and that all his functions and all his humors
shall be turned inward upon his system. While your patient is laboring in
the very crisis of this course of treatment, you, his physician, take a
journey into a far country, and you say to his attendant, “I have a great
experiment here in process, and a new one. It is all for the good of the
young man, so do not fail to adhere to it. These are my directions, and
the power with which I invest you. No attention is to be paid to any
internal symptom which may occur. Let the patient be convulsed as much as
he will, you are to remove none of my bandages. But, in case something
external should happen; if the sky should fall, and larks should begin to
appear, if three birds of Paradise should fly into the window, the great
purpose of all these sufferings is answered. Then, and then only, have
you my authority to administer relief.”
The conduct of such a physician, in such a case, would not be more
extraordinary than that of this House in the present, should it adjourn
and limit the discretion of the Executive to certain specified events
arbitrarily anticipated; leaving him destitute of the power to grant
relief should internal symptoms indicate that nothing else would prevent
convulsions. If the events you specify do not happen, then the embargo
is absolutely fixed until our return. Is there one among us that has
such an enlarged view of the nature and necessities of this people as
to warrant that such a system can continue six months longer? It is a
presumption which no known facts substantiate, and which the strength
and the universality of the passions such a pressure will set at work
in the community, render, to say the least, of very dubious credit. My
argument in this part has this prudential truth for its basis: If a great
power is put in motion, affecting great interests, the power which is
left to manage it should be adequate to its control. If the power be
not only great in its nature, but novel in its mode of operation, the
superintending power should be permitted to exercise a wise discretion;
for if you limit him by contingencies, the experiment may fail, or its
results be unexpected. In either case, nothing but shame or ruin would
be our portion.
But I ask the House to view this subject in relation to the success of
this measure, which the majority have justly so much at heart. Which
position of invested power is the most auspicious to a happy issue?
As soon as this House has risen, what think you will be the first
question every man in this nation will put to his neighbor? Will it not
be--“What has Congress done with the embargo?” Suppose the reply should
be--“They have made no provision. This corroding cancer is to be left
absolutely on the vitals six months longer.” Is there a man who doubts
but that such a reply would sink the heart of every owner of property,
and of every laborer in the community? No man can hesitate. The magnitude
of the evil, the certain prospect of so terrible a calamity thus long
protracted, would itself tend to counteract the continuance of the
measure by the discontent and despair it could not fail to produce in
the great body of the people. But suppose in reply to such a question,
it should be said--“The removal of the embargo depends upon events.
France must retrace her steps. England must apologize and atone for
her insolence. Two of the proudest and most powerful nations on the
globe must truckle for our favor, or we shall persist in maintaining
our dignified retirement.” What then would be the consequence? Would
not every reflecting man in the nation set himself at work to calculate
the probability of the occurrence of these events? If they were likely
to happen, the distress and discontent would be scarcely less than in
the case of absolute certainty for six months’ perpetuation of it. For
if the events do not happen, the embargo is absolute. Such a state of
popular mind all agree is little favorable either to perseverance in
the measure, or to its ultimate success. But suppose that the people
should find a discretionary power was invested in the Executive, to act
as in his judgment, according to circumstances, the public good should
require. Would not such a state of things have a direct tendency to allay
fear, to tranquillize discontent, and encourage endurance of suffering?
Should experience prove that it is absolutely insupportable, there is a
constitutional way of relief. The way of escape is not wholly closed. The
knowledge of this fact would be alone a support to the people. They would
endure it longer. They would endure it better. We would be secure of a
more cordial co-operation in the measure, as the people would see they
were not wholly hopeless, in case the experiment was oppressive. Surely
nothing can be more favorable to its success than producing such a state
of public sentiment.
We are but a young nation. The United States are scarcely yet hardened
into the bone of manhood. The whole period of our national existence has
been nothing else than a continued series of prosperity. The miseries
of the Revolutionary war were but as the pangs of parturition. The
experience of that period was of a nature not to be very useful after
our nation had acquired an individual form and a manly, constitutional
stamina. It is to be feared we have grown giddy with good fortune;
attributing the greatness of our prosperity to our own wisdom, rather
than to a course of events, and a guidance over which we had no
influence. It is to be feared that we are now entering that school of
adversity, the first blessing of which is to chastise an overweening
conceit of ourselves. A nation mistakes its relative consequence,
when it thinks its countenance, or its intercourse, or its existence,
all-important to the rest of the world. There is scarcely any people,
and none of any weight in the society of nations, which does not possess
within its own sphere all that is essential to its existence. An
individual who should retire from conversation with the world for the
purpose of taking vengeance on it for some real or imaginary wrong, would
soon find himself grievously mistaken. Notwithstanding the delusions of
self-flattery, he would certainly be taught that the world was moving
along just as well, after his dignified retirement, as it did while he
intermeddled with its concerns. The case of a nation which should make
a similar trial of its consequence to other nations, would not be very
different from that of such an individual. The intercourse of human life
has its basis in a natural reciprocity, which always exists, although
the vanity of nations, as well as of individuals, will often suggest to
inflated fancies, that they give more than they gain in the interchange
of friendship, of civilities, or of business. I conjure gentlemen not
to commit the nation upon the objects of this embargo measure, but by
leaving a wise discretion during our absence with the Executive, neither
to admit nor deny by the terms of our law that its object was to coerce
foreign nations. Such a state of things is safest for our own honor and
the wisest to secure success for this system of policy.
Mr. KEY said he well knew how painful it was to address gentlemen who
had already made up their minds; but the magnitude of this important
constitutional question compelled him to trespass for a few moments
on the patience of the House. I shall, said he, confine myself to the
constitutionality of the bill from the Senate, in hopes that if the House
feel the impressions on the subject which I feel, they will reject it;
or at least word it so, that the power given to the President shall be
constitutional. I was in hopes, from the talents of the gentlemen who
spoke the other day, that I should have heard some reply, some attempt
made to defeat the constitutional objections which I offered to the
resolution; if they did not meet them with fair argument, that they
would at least have shown what part of the conclusions which I had drawn
were incorrect. Gentlemen say the argument is not true. They must either
allow my deductions, or show wherein I am incorrect in drawing them. I
call upon the understanding of the House, and their attachment to the
constitution, to follow me but for a few moments, and see whether we can
vest the power contemplated by the bill.
All the respective Representatives of the people of the States at large,
and the sovereignty in a political capacity of each State, must concur
to enact a law. An honorable gentleman from Tennessee (Mr. CAMPBELL)
admitted that the power to repeal must be coextensive with the power
to make. If this be admitted, I will not fail to convince you that
in the manner in which this law is worded we cannot constitutionally
assent to it. What does it propose? To give the President of the United
States power to repeal an existing law now in force--upon what? Upon
the happening of certain contingencies in Europe? No; but if those
contingencies when they happen in his judgment shall render it safe to
repeal the law, a discretion is committed to him, upon the happening
of those events, to suspend the law. It is that discretion to which
I object. I do not say it would be improperly placed at all; but the
power and discretion to judge of the safety of the United States, is
a power legislative in its nature and effects, and as such, under the
constitution, cannot be exercised by one branch of the Legislature. I
pray gentlemen to note the distinction: that whenever the events happen,
if the President exercise his judgment upon those events, and suspend
the law, it is the exercise of a legislative power; the people, by the
constitution of the country, never meant to confide to any one man the
power of legislating for them.
Is the suspension of the law a legislative act? Can any man doubt it? It
is as much a legislative act as to repeal or make a law; and the same
power which can give any man a right to suspend a law, can give him an
equal right to make a law. I ask if these principles are not clear and
manifest to any one who will consider them? Is the power to suspend a
law a legislative act? Certainly; because it changes the law to a new
rule of conduct. For instance--the law is in full force; no ship or
vessel can depart from our ports. That prohibition ceases and a new rule
is established by the suspension of the law. Hence the suspension of a
law, by repealing an old rule of conduct and establishing a new one,
is unquestionably a legislative act. If I am correct--and I call upon
gentlemen to show in what respect I am not correct; I call upon them by
argument or reasoning to prove that the power of suspending a law is
not the power of repealing one--I then beg of you to lay your hand on
the Constitution of the United States, and say where is the power of
confiding the enaction (repeal and enaction requiring the same power) of
laws to any individual whatever? None can be found; and till some can be
found, we must recognize it as a sacred truth that under the constitution
none does exist.
I have endeavored to show that it is a legislative power, and my reason
for doing so was, to testify to a gentleman from Massachusetts (Mr.
QUINCY) that with this explanation I will give an easy understanding
of this question. I do not say that we cannot give the President upon
certain predicated events a power by which the embargo may be taken off.
Such may be done. But when it is done, a repeal or suspension must be
the act of the Congress of the United States, operating upon events or
facts to which the President by his proclamation may give publicity. Very
different is this bill from that; and from the idea of a gentleman who
the other day said that the President was only to judge of the fact. Of
what fact? Not of the happening of the events solely; for after they do
happen, he is to exercise his exclusive judgment whether it will comport
with the safety of the United States to suspend the embargo.
The gentleman does not seem to think that I draw a fair conclusion. I
think the bill does not restrict the power of the President to suspend
the law upon the happening of certain events. The President is to
exercise his sole judgment, upon the happening of these events, whether
it is consistent with the safety of the United States to remove the
embargo. Is he bound upon the happening of these events to take off the
embargo? If not, something more is to be done. He is to exercise a sound
discretion whether the trade of our country may be safely prosecuted. He
is not even then bound to suspend the whole of the embargo act; but to
suspend the whole or in part, under certain exceptions or restrictions.
Who is to make these exceptions and restrictions? The President of
the United States. Then when under this power of suspension, he makes
restrictions to which you are bound to adhere, does he not make the
suspension a law of the land? Most manifestly. If he does, is not the
suspension an actual imposition of new circumstances? He exercises a
legislative act by the suspension, and by fixing terms and conditions on
which the commerce of the United States may be afterwards carried on. In
both cases he exercises a legislative not an Executive power.
I said the other day that to give the President of the United States
power to suspend any law, was equal to giving him power to suspend all
laws. And I ask any gentlemen attached to the constitution, where they
will find that power. For if it be true in part it is true in the whole
as to the power; though we may not in our discretion confide the exercise
of the whole power to him. Now, I ask where the constitution gives us
a power to enable him to suspend any law. Of all the powers on earth,
even were it clear that we possess it, it ought to be exercised with
the greatest hesitation. It was perhaps the most dangerous prerogative
ever claimed by the Crown for several centuries in England--the power
of suspending the effects of laws enacted by the people. I call the
attention of gentlemen to recollect that when the last of the unfortunate
race of Stuart was about to abdicate the throne, one of the greatest
reasons for the abdication was his suspending laws; that he undertook
to suspend the penal laws respecting the Catholic system, and introduce
Popery. The courtiers of those days attempted to justify the power not
only as a prerogative of the Crown, but as often given to it by the
people; and in ransacking the history of England, but two precedents were
found. No sooner did the patriot convention meet, but in the most solemn
manner they declared that such a power did not exist; and governed as
that Parliament are now by corruption and intrigues, there never since
has been an attempt to give the King the power of suspending laws. My
observations flow from no want of confidence in the Executive. I am in
conscience and conviction opposed to our having the right to impart
a legislative power at all. In England it might be done, because the
Legislature is omnipotent; but we are limited within the sphere of our
constitution; and if the power is not there to be found, it can nowhere
exist. Hence I state that in forming this constitution it was declared
that all laws to be enforced must have the assent of the three branches
representing three distinct interests of the community; and to repeal
them the same formality is required.
It has been said, that powers analogous to that now attempted to be
given, have been exercised. One in the case of the non-importation law;
where the power to suspend was contained in the body of the law itself.
I can satisfy the gentleman from Massachusetts that the powers which he
refers to were all Executive, capable of being exercised by any one as
well as by the President. If we have authority to give the President of
the United States the power of suspending a law, have we not a right to
select any other man in society, and give him the same power? We cannot
transfer it anywhere. I ask the gentleman if we are capable of giving
power to the President of the United States to suspend a law, can we not
to any officer of Departments? If we cannot, what limits us? How are we
bound? By what clause in the constitution, and on what principle? The
President, it is true, is the person to whom, if we had the power, it
would be most properly confided; but there is nothing which confines
us exclusively to him, or which prevents us, if we have authority to
delegate the power at all, from giving it to another.
The honorable gentleman from Massachusetts (Mr. QUINCY) observed
that there is a distinction to be taken in the construction of the
constitution, from nature and necessity. I sit so remote from him
that I could not distinctly hear him. But I cannot see how there can
be any distinction in our power from the nature of things, the whole
constitution being in writing, containing limitations to our power; nor
from necessity, for if that is to have any weight, the constitution is a
perfect panacea. The constitution has limited our power, and never even
thought of nature and necessity; but told you to revolve in the sphere
prescribed to you. As to legislative power, there can be no distinction
in it on earth; it is a simple unique power--the right to make, suspend,
or repeal laws. There are powers created by that legislative authority;
and there the gentleman ought to have taken his distinction. The
legislative authority may communicate power to any man in the country
to be exercised. They may direct a survey of the country to be made,
and empower the President to appoint the person to execute it. This is
a power created by the Legislature to be exercised by the Executive,
not involving a legislative power at all. So by borrowing money. The
power of borrowing money was an authority given to Congress to enable
them to pledge the faith of the United States, as a guarantee to inspire
confidence in those who might lend. When a law passes for borrowing money
you may constitute any person in the country an agent to execute the
bond which may be given, to negotiate a loan, or to receive the money
in the Treasury. Is there in transacting this business any thing of a
legislative power? Certainly not. If by this bill the President of the
United States was limited upon the happening of certain specified events
to issue his proclamation, and thereupon that the law should cease and
determine, I should have no objection to it. I will read my ideas, which
might have met the ideas of the house, and will go far to explain to what
point I would go and where I would stop. [Mr. KEY then read an amendment
somewhat similar to that offered by Mr. RANDOLPH; that in the event of
peace or official notification of the rescinding the orders and decrees
of the belligerents, &c., the President should issue his proclamation
declaring the fact, and thereupon the law imposing an embargo should be
repealed.] This, said he, is a legislative repeal or suspension of the
act laying an embargo, upon the happening of certain events; involving
no power or discretion of any one human being. The suspension or repeal
follows by the constitutional exercise of our power, upon the happening
of those events which the Executive by proclamation shall notify. And let
any gentleman show any further power can constitutionally be given.
Other cases were mentioned, where impliedly or directly the President
might or must have power to suspend our laws. I agree with the gentleman
that we may give these powers in the manner which the constitution
requires. The President may have power to suspend our intercourse with
any port or country in the case of contagion. In this case it depends
upon the phraseology of the law whether the power be constitutionally
exercised or not. If we state in an intercourse law, that if a disease
shall exist in any of the West India Islands or elsewhere, and that upon
proclamation of the existence of such disease the law shall be suspended,
the provision made is entirely different from that contemplated by the
present bill. I say if gentlemen will attend to the distinction they
will find that it is as plain as the sun at noon-day. It requires but
little discernment to perceive that in the present case you devolve a
power of suspension or repeal; while, in the case adduced as parallel,
the law suspends itself. It requires but little distinction of ideas to
mark a difference between a case in which we ourselves by law suspend an
act upon the happening of an event yet in the womb of time, and a case in
which we give the Executive a power to suspend the law _ad libitum_ when
that event does occur.
I therefore do give the bill from the Senate my decided opposition, on
the ground that we cannot pass the bill as sent to us; not that I am
unwilling to raise the embargo, for I wish an immediate repeal.
Mr. HOLLAND said, when this subject had been first introduced he
had conceived it to be one of those plain cases which would require
no illustration. He had no idea the power could be doubted. He was
dissatisfied with the gentleman from Tennessee, because he had taken up
some time to show that they did possess the power; he then thought all
the time taken up on the subject was time lost. It had never been before
questioned; the power had been exercised from the commencement of the
Government to the present time, and never before doubted; and therefore
he had been dissatisfied with the gentleman from Tennessee, because he
took up a few minutes to show that they possessed the power. I am yet,
said he, unable to see that the principle of the bill is shaken by the
arguments I have heard against it, although much ingenuity has been
exercised on the subject by one or two gentlemen; but, when we come to
examine their arguments, they are far from being plausible, certainly
not solid. The gentleman from Maryland supposes that the maxim will
not be contradicted, that it takes the same power to repeal a law that
it does to make it. None will contradict it; but does it apply to this
case? Do we vest a power to repeal a law? It is correct that it requires
the same power to destroy as to create; that the power creating always
has power over the thing which it creates, and can modify it in any
manner. If then the power which makes a law, says at what particular
period and under what particular circumstances this law shall cease to
operate, does it follow that the power of suspension given to an agent
is an unconstitutional power? If a power be given by the creating power
to suspend a law, does it follow that this power has subverted the
original intention of the creator? When a power is invested to suspend
the operation of a law, the person who exercises this authority acts in
an Executive capacity, and only does what the law enjoins to be done.
If I am correct in this, all the arguments of gentlemen in opposition
to the bill fall to the ground. One gentleman says, that in relation to
the non-importation law, the power to suspend was contained within the
law itself. Does he mean to say, because this power was not contained
in the original embargo law, that we cannot give it by a subsequent
act? Certainly the gentleman does not mean this, because this if passed
will be a part of the same law; as it is a known principle that all
laws on the same subject shall be considered in the same manner as
though connected together. It is not material then whether the power
of suspension of a law be given in the body of the law itself, or by a
subsequent act. The gentleman from Virginia who proposed the amendment
under consideration says, if you will authorize a suspension until twenty
days after the commencement of the next session of Congress, why not give
him power to repeal it altogether? There is some reason why it should
not be repealed altogether; for, were it to be repealed, it might be
necessary to reinstate it, which would give us the trouble of reenacting
the law; and Congress will be better able then to judge whether it shall
be repealed or not, than they are now.
Mr. FINDLAY said, that when this subject was discussed formerly, he
had been prepared to make some observations on it, but the floor being
sufficiently occupied, he had declined rising, and had intended to have
done so now, but for reasons which he would mention.
On the former discussion, the embargo was declared to be
unconstitutional. It was boldly asserted that the Government was not
authorized to lay an embargo, &c. He was indeed astonished to hear
such an assertion, especially coming from the quarter it did. He had
apprehended, however, that on that occasion it had been so ably refuted
by others that it would not be introduced again; but it having been again
introduced to-day, and the proposed transfer of the power of suspending
the operation on the embargo to the President objected to on the same
ground, he claimed the attention of the committee for a short time. His
object was to state the observations he had early made on this subject
and the precedents that existed. In doing so, he would not follow
gentlemen’s arguments, on the other side, in detail, but would state
facts and draw some very concise conclusions. In doing this, he would
confine himself to proving the constitutional authority of Congress to
lay an embargo, and the constitutionality and expediency of the proposed
transfer of the provisional suspending power to the Executive and the
expediency of the measure.
From the arguments which had been offered on this subject, he was induced
to suspect that gentlemen differed in opinion about the meaning of the
word _embargo_. He understood an embargo to be a stopping of trade
generally, or of any article of trade or commerce, either by land or
water; this he said was the definition of that term, such as he found
it in the best authorities; but if there could be any reasonable doubt
of laying embargoes being included in the power of regulating commerce,
which he thought there could not, it was clearly deducible from other
powers taken in connection with this. Here be read and applied the
power to provide for the common defence and general welfare of the
United States, and the power to make all laws which shall be necessary
and proper for carrying into execution the foregoing powers, &c. He said
he agreed with gentlemen on the other side, that this only authorized
Congress to carry into effect the powers therein before enumerated, and
vested no new power in Congress, but demonstrated beyond a doubt that
Congress had power to apply these regulations of commerce to an embargo,
if in their opinion it was necessary for the common defence and general
welfare of the United States. He said that considering an embargo as
incidental, or necessary, either as a substitute of prevention or aid
in prosecuting war, the power was beyond dispute; but on this he would
not enlarge, it being sufficiently evident otherwise, but he would, by
stating the exercise of that power heretofore, illustrate the subject.
That Congress, by the constitution, are the official interpreters of
that instrument, as far as it relates to legislative power, must be
admitted by all, and has never been denied by any. No other authority
can interfere with the exercise of this power, even admitting the power
of the judiciary to decide on the constitutionality of laws to the
most extravagant extent that ever has been suggested. Yet even on that
ground the legislative construction must be held good till a court of
justice has decided otherwise. Embargoes have been frequently laid, and
no measure can possibly afford more evident or more numerous cases for
bringing the constitutionality of the law before a court of justice, but
though counsel has been employed in embargo cases, yet none has ever
questioned the authority of the law as unconstitutional.
In 1794, three embargoes were authorized by Congress, two of them were in
full operation during the period prescribed. No doubt the circumstances
were different then from what they are now; but circumstances relate to
the expediency of the measure, not to the authority of the Legislature.
This affords three precedents of the exercise of the constitutional
authority of laying an embargo. Numerous other instances may be given.
He had already stated that every stoppage of any usual trade by law was
an embargo, for less or more did not change the principle. The Congress
which met in 1793, stopped the exportation of arms and ammunition, that
is to say, laid an embargo on them; he believed this had been done on
other occasions, and these were now included in the embargo. An embargo
had been laid several years on all trade with St. Domingo, which still
continues, and this had till then been a usual and very beneficial trade;
but every prohibition of a usual trade being an embargo to the extent of
the prohibition, it was not necessary to enumerate them all. He would
only add, that at the last session of Congress a law was enacted for
laying a complete embargo on the slave trade, a trade which had been
carried on between Africa and the British colonies, now United States,
without legal interruption, for more than two hundred years, but though
that embargo was laid without limitation of time, it might be repealed.
The first embargo laid by Congress was soon after the constitution had
undergone a critical and severe scrutiny in every State in the Union, not
only by the press, but by the State conventions, a member of one of which
he had been, and had assisted in examining it, not with the most delicate
hand; but neither that convention nor any other, it was believed,
censured the transfer of the power of laying an embargo to the General
Government, nor challenged the want of it, nor moved to have it excepted
out of the general powers of regulating commerce, as the power of taxing
exports had been. The third Congress was also in a considerable degree
composed of such as had not long before been members of the General or
State conventions, or both. Such was the President, WASHINGTON, who
recommended the first embargo, and he was no mean judge of the extent of
the constitutional powers. Almost every Congress since that period had
exercised the same power in a greater or lesser degree. He admitted that
this Congress had an equal right to judge of the extent of the powers
granted by the constitution as any former Congress, but they possessed no
superior advantages to enable them to judge more correctly.
The constitutionality of the embargo being demonstrated, the direct
question before the committee was, are we not constrained by the
constitution, or at least by the nature of the Government, from
transferring the power of suspending its operation, on any terms, to the
President, and is it expedient to do so? Mr. F. said the first was a
question of some delicacy, about which good men might very much differ;
the constitution, however, was silent on the subject, and theory, by
some called the spirit of the Government, such as that it consists of
three separate and distinct branches, could never be perfectly carried
into effect, but only in a limited degree. This was demonstrated by
all the American constitutions and by the experience and practice of
all other Governments. The common theory, that though Executive power
may be transferred, legislative power cannot, has also its limitation
in practice; these theories are good general rules, but like all other
general rules they have their exceptions in practice. He admitted, with
the gentleman from Maryland, (Mr. KEY,) that suspending or changing the
embargo, as it changed the rule of conduct, was a legislative act, but
not in the full sense of that term. If Congress were to adjourn leaving
the embargo as it is, in full operation, and the President during
the recess was to suspend or change it, solely by his own authority,
this would be an assumption of legislative authority, and a complete
legislative act, in opposition to which the gentleman’s arguments would
apply with great force, but they do not apply against the transfer
proposed in the bill. In the bill before the committee, Congress express
its will that the embargo should be suspended as soon as the causes from
which it originated ceases, or modified in its operations agreeably to
the change of those causes over which we have no control. These changes
depending wholly on the will of the belligerent powers, it impossible for
Congress to prescribe the contingencies that may produce these changes,
so it impossible to prescribe the specific contingencies on which it
would be proper to modify or suspend the embargo; therefore it is only
the power of applying the law to cases which are yet uncertain that
is proposed to be transferred to the President. This is not strictly
transferring a legislative power, but a latitude of discretion in the
execution of the law, a latitude which arises solely from the nature and
necessity of the case, and must be justified from that necessity.
Passing other examples in our own administration that might be mentioned,
he would introduce one precedent that applied completely to the case.
In 1794, after the British orders of November, 1793, the execution of
which had induced President Washington to recommend an embargo, had been
restrained, and after it was discovered that the embargo distressed
other nations against whom it was not intended to operate, and after
negotiation was determined on, the embargo which had existed sixty
days, was dropped, even while some of the first commercial cities were
petitioning for its continuance, and none for its removal; but a law
was passed which authorized the President, at his discretion--[Here
Mr. F. read the law]--it authorized the President to lay, to regulate,
and to raise an embargo, as, during the recess of Congress, he, in his
discretion, should judge expedient. By this law he was authorized to
apply the embargo to ships of all nations, or to our own only; by the
bill before us, no power is given to lay an embargo, but only to suspend
the operation of that already laid; and that law, from the Journals,
appears to have passed unanimously. He said that he recollected well,
that he himself voted for it on the principles which he just mentioned.
There had been a difference of opinion about the expediency of laying
an embargo when it was recommended. Some were apprehensive that it
would lead to actual war, and all the alarms of the distress and ruin
to be occasioned by it, were displayed with shut doors, as well on that
occasion as this, but not so perseveringly; such, however, was the
different spirit of party between that time and this, that to prevent the
impression going abroad that we were a divided people, the minority did
not call the yeas and nays on any of the questions respecting it; indeed,
party spirit had not then assumed the same form it has done since, nor
the same temper.
Mr. ROWAN.--The pressure and weight of the embargo should not have
influence in deciding this question. It seems that the feelings of
gentlemen are interested in it. The gentleman from Massachusetts wishes
to be relieved from it. As you regard civil liberty and the rights of
individuals, take it off before you go, sit till you will take it off,
or go away and come back to do it. Do not be influenced by sympathy
for the people suffering under the pressure of the embargo to make a
sacrifice of the rights of these very people under color of sympathy for
whom you are about to pursue this course. These evils may not be the
immediate consequence of this course, but you are not less responsible
for it from the remoteness of its consequence. We are answerable for
all the proceedings of future Legislatures upon this precedent. That
is the misfortune of it. We cannot see what consequences are attached
to it. It may be improved upon by our successors further and further,
till it is impossible for them to retrace their steps; and it is in
that point of view that I am strongly opposed to the vestiture of this
power. Is it possible that, in this early state of our Government, this
thing should be deliberately done? We know very well the popularity of
our first President, when the first precedent of this kind was set. It
is unfortunate for the happiness and well-being of society, that there
sometimes are men whose opinions have such a weight as to overturn
deliberation. We need no longer deem so extravagant the custom of
ostracism, which banished every man whose popularity and influence was
too great. Strip this question of men, and resort to the constitution,
and it will be impossible to sustain the bill. Even its advocates do not
deny that it is unconstitutional. It is not to be found in the fountain
of our power; they go back to precedent for authority to pass it, and the
resort to precedent is itself one of the strongest arguments against it.
They do not find a specific delegation to us of authority to transfer
our power. The true ground is abandoned, and those materials resorted
to, as a substitute for argument, which have always ruined republican
governments--precedent and feeling. Judgment is silenced by feeling,
and then precedent is called in to aid the overthrow of principle.
Instead of looking into the constitution, and deriving our authority
from the fountain, we agree that others shall have thought for us. Here
are precedents; the persons who formed them were republicans; no doubt
they examined the constitution; we will confide in them, and bottom our
decision on their opinion. The first attribute of freedom is to act for
yourself; and when others think for you, you evince that you are ready to
be governed by them--for, if others think for you, and act for you, you
have little else than vassalage left.
I am opposed to the bill, then, upon principle. I will join heartily
in any constitutional mode of repealing the law. I would say to the
gentlemen who passed the embargo law, “I have no doubt that you meant
to serve the country by passing it; upon you rests the responsibility;
and I will act with you to repeal it in any way which shall be
constitutional.”
There is a provision in this bill which is more dangerous still. It not
only belongs to Congress to regulate commerce, but to declare war. Pass
this bill, and the Executive has it in his power to declare war--for he
is to take off the embargo when, in his judgment, the interests of the
nation require it; and then, under such restrictions as his judgment
shall dictate, determine with which of the powers of Europe he will go
to war, or whether with both--for he may so exercise the power which
you shall give him as not to leave it optional in the nation whether
it will declare war or not. Our honor may be assailed in such a manner
in consequence of it, as not to leave us at liberty to inquire whether
properly or not. The power, if given at all, should be confined to a
total repeal, and not put it in the power of the President to say with
whom we shall be embroiled. How do gentlemen reason? I have not heard
any reasoning, though I have heard it said, and, no doubt, a course of
reasoning might have served to prove it, that this bill only confers
Executive power. What did Congress more when they laid the embargo
than that which they now authorize the Executive to do--to legislate
upon existing circumstances and probable events? He is to exercise his
judgment, whether the embargo shall be suspended upon ratification of a
treaty of peace, suspension of hostilities, &c., and the modification
of the suspension rests with him. If this be not legislation, I am at a
loss to know what is. Enforcing a law constitutes an Executive duty; but
not exercising a judgment upon the circumstances which form the basis of
a law, and then acting upon it. The Executive cannot combine in himself
two powers which the constitution declares shall be forever separate.
Reason and the constitution direct that the Executive and legislative
departments shall be kept separate and distinct.
Being young in legislation, I may learn to repose upon the opinion of
others, and not be governed by own interpretation of the constitution;
I have not as yet, however, learned it, and must be governed by my own
understanding.
Mr. LYON moved that the committee now rise. Negatived--58 to 13.
The question was then taken on Mr. RANDOLPH’s amendment, and
negatived--ayes 14.
Mr. LEWIS moved to amend the bill so as to repeal the embargo from and
after the passing of this bill.
Mr. RANDOLPH said that this motion of his colleague’s went pretty
directly to the root of the evil. There had been a variety of
propositions before the committee. For myself, I have no hesitation
in saying, that if we must grant a discretion to the President of the
United States, I should wish that discretion, so far as it relates
to the suspension of the embargo, to be as ample as possible; for,
if the constitution is to be violated, the greatest good attending
that violation should flow from it, if indeed good can flow from the
violation of the constitution. But I think that benefits have flowed
from constitutional violations, and why should they not again? Our body
politic is not of so tender a nature as to die outright even of so
violent an assault as this; there are stamina in it which will ultimately
restore it to its wonted vigor. I understand that the gentleman from
Virginia who makes this motion, does it from the apprehension that an
idea will go forth that he is not in favor of raising the embargo,
although he voted against it originally. I conceived it impossible
that such an idea should go forth. Is it possible that those who voted
against laying the embargo can now be insensible to its pressure? What
is the operation of the embargo, and what will be the operation of this
confidence which we are about to repose in the Executive of the United
States? Why, when the embargo was laid, there were those who made money
on it, because they got earlier intelligence of it than their fellow
citizens; and now, when the embargo is in operation, there are those who
do not suffer under it. I have it from good information, that at least
100,000 barrels of flour have been shipped from Baltimore alone since it
was laid. It may be recollected, that the gentleman from Maryland, who,
the other day, gave us so able an illustration of the question, urged as
an argument against it, that the embargo operated unequally. I should be
sorry to put myself on a par with that gentleman in any knowledge, much
less could I assume to possess a better knowledge of his own district
than he himself possesses; but I believe it has been said by a gentleman
said to be possessed of commercial knowledge, that many thousand barrels
of flour had been shipped from that gentleman’s district alone through
Baltimore. I was in hopes that this reply would have been made before,
because, coming from the quarter whence it must have come, it would
have operated as an argument to estimate the value of this measure on
the West India Islands; and it is evident, that nothing but an evasion
of this kind would keep up the price, low as it is--for, when I single
out Baltimore, I have no doubt the same game is going on elsewhere--at
Eastern Point and Passamaquoddy particularly. The operation of the
embargo is to furnish rogues with an opportunity of getting rich at the
expense of honest men. The man who is hardy enough to give bond and leave
his security in the lurch, can make great returns; whereas the honest
merchant and planter are suffering at home, and bearing the burden. It is
for the benefit of the dishonest trader--for the planter is out of the
question, as he cannot be a partner in the act which contravenes the law
of the land. Is this all the operation of the embargo? No; for I will
tell you another operation it has; that while the sheriff is hunting the
citizen from bailiwick to bailiwick with a writ, his produce lying on
his hands worth nothing, your shaving gentry--accommodation men, five
per cent. per month men--are making fifty or sixty per cent. by usury;
or making still more by usury of a worse sort--buying the property of
their neighbor at less than one-half its value: and well they may afford
to appropriate their money to such profitable uses, supposing character,
morals, religion, honor, and every thing dear to man, trodden under foot
by Mammon. Are these alone the effects which result from the embargo? No,
sir; you are teaching your merchants, on whose fidelity, on whose sacred
observation of an oath, when the course of events returns to its natural
channel, your whole revenue depends; you are putting them to school, and
must expect to take the consequences of their education. You are, by the
pressure of the embargo, which is almost too strong for human nature,
laying calculations and snares in the way, teaching them to disregard
their oath for the sake of profit; and do you expect your commerce to
return to its natural channel without smuggling? You may take all your
Navy, and gunboats into the bargain, with all which you cannot stop them.
Those men who now export so many barrels of flour from our markets, will
not pay the high duties on wines and groceries when they can avoid it
by evasion of the laws; for they will have learned the art of evading
laws; they will have taken their degrees in the school of the embargo.
This is the necessary result. You lay temptations before them too strong
for their virtue to resist, and then, having cast your daughters into a
brothel, you expect them to come out pure and uncontaminated. It is out
of the question, and I venture to predict that the effect of this measure
upon our imposts and our morals too, sir, will be felt when not one man
in this assembly shall be alive. Every arrival from the West Indies tells
you of the cargoes of flour daily carried in, until it becomes a point of
honor not to tell of one another.
Mr. LEWIS’s amendment was then negatived--ayes 22.
The bill having been reported to the House by the Committee of the Whole,
the House then proceeded to consider it, and several motions made to
amend it, all of which were rejected.
The bill was then ordered to a third reading--ayes 56, noes 27. To-morrow
being named for the day, was lost--yeas 28. It was then ordered to be
read this evening, without a division. And having been read a third time,
The question was then taken (half-past ten) by yeas and nays--yeas 60,
nays 36, as follows:
YEAS.--Lemuel J. Alston, Willis Alston, jun., Ezekiel
Bacon, David Bard, Joseph Barker, Burwell Bassett, William
Blackledge, John Blake, junior, Adam Boyd, Robert Brown,
William A. Burwell, William Butler, Joseph Calhoun, George
W. Campbell, Matthew Clay, Howell Cobb, Richard Cutts, John
Dawson, Josiah Deane, Daniel M. Durell, John W. Eppes, William
Findlay, James Fisk, Peterson Goodwyn, Isaiah L. Green, J.
Heister, James Holland, David Holmes, Daniel Ilsley, Richard
M. Johnson, William Kirkpatrick, John Lambert, Robert Marion,
William McCreery, John Montgomery, Nicholas R. Moore, Jeremiah
Morrow, John Morrow, Thomas Newbold, Thomas Newton, Wilson
C. Nicholas, John Porter, John Pugh, Jacob Richards, Matthias
Richards, Samuel Riker, James Sloan, Dennis Smelt, John Smilie,
Jedediah K. Smith, Henry Southard, Clement Storer, George M.
Troup, James I. Van Allen, Daniel C. Verplanck, Jesse Wharton,
Isaac Wilbour, Alexander Wilson, James Witherell, and Richard
Wynn.
NAYS.--William W. Bibb, Thomas Blount, Epaphroditus Champion,
John Culpepper, Samuel W. Dana, John Davenport, jun., William
Ely, Francis Gardner, James M. Garnett, Charles Goldsborough,
John Harris, William Hoge, John G. Jackson, Walter Jones,
Philip B. Key, Joseph Lewis, junior, Edward Lloyd, Matthew
Lyon, Nathaniel Macon, Josiah Masters, William Milnor, Daniel
Montgomery, jun., Jonathan O. Mosely, Timothy Pitkin, jun.,
Josiah Quincy, John Randolph, John Rhea of Tennessee, John
Rowan, Samuel Smith, Richard Stanford, Lewis B. Sturges,
Samuel Taggart, Benjamin Tallmadge, John Taylor, Abram Trigg,
Archibald Van Horn, Killian K. Van Rensselaer, and David R.
Williams.
Mr. RANDOLPH then moved to strike out of the bill the words “under
certain conditions;” for nothing could be more certain than that the bill
contained no certainty.--Negatived without a division.
_Ordered_, That the Clerk of the House do carry the said bill to the
Senate, and inform them that it has passed the House without amendment.
On motion, the House then adjourned.
WEDNESDAY, April 20.
_Judge Innes._
On motion of Mr. ROWAN, the House took up for consideration the report of
the committee appointed to inquire into the conduct of Harry Innes--56 to
26.
Mr. SMILIE moved that the report be committed to a Committee of the
Whole, with a view to let it lie over until the next session. The select
committee in considering the testimony before them, which consisted
of those documents before the House, had thought they did not contain
sufficient matter on which to ground an impeachment; at the same time
that they felt a disposition to pursue the inquiry if other testimony
could be had, which did not appear possible to be had during the present
session. A postponement of the subject would give an opportunity to
procure testimony _pro_ and _con_.
Mr. ROWAN was opposed to commitment, as he thought it could answer no
purpose but to delay a decision. For himself he was of opinion that the
documents already before the House were abundantly sufficient for the
conviction of Judge Innes; at least sufficient on which to ground an
impeachment. It certainly was not for the interest of the community, if
this man were guilty, that he should be continued in the exercise of his
high authorities longer than could be avoided, and therefore, in justice
to the United States, and to the people of Kentucky, an early decision
should be had.
Mr. R. then took a view of the testimony contained in the report of the
committee of the Legislature of Kentucky in the case of Judge Sebastian,
on which he dwelt at some length, stating more than one fact proved by
it, which he thought would of itself be a sufficient ground for removal
from office of a judge of the United States.
Nothing could be gained, he said, by sending the subject to a committee.
The people of Kentucky were alive to the subject. They had manifested
their anxiety in regard to it, and their attachment to the Union by
sending forward to this body a solemn resolution expressive of their
desire for a full inquiry, and on this subject he thought the zeal of
the State should not outstrip that of the nation. This commitment and
consequent postponement would be a manifest disregard of the act of
an honorable State, to whom the House should not show disrespect. He
concluded by hoping that Kentucky would be permitted to have a judge who
was truly an American; one who could not tamper with the enemies of his
country, and about whom should be such an atmosphere of repulsion as to
prevent him from being selected as a fit object for corruption. Such a
judge as this Kentucky wanted.
Mr. SMILIE said neither his respect for the State of Kentucky, nor yet
any suspicious circumstances, should affect his feelings; he wanted
testimony to satisfy his mind of the guilt of the man. None but legal
testimony could be received on trial for impeachment, and such he wished
to see before he voted for commencing an impeachment. Setting all other
considerations aside, the House had now but four days to sit, and it
would occupy the whole of that time at least to discuss the subject, were
it now to be decided.
Mr. TAYLOR had been one of the select committee, and in the minority
on the report which they agreed upon. Whatever might be the opinion of
the committee, he thought the House were bound, from the respectable
source from which the subject had been presented, to act upon it during
the present session. With respect to the evidence necessary to prove
a misdemeanor, it was not necessary that they should put their finger
on the statute book to find the offence, for common sense would decide
it. A judge of the United States had been dismissed from office for
drunkenness, much less a misdemeanor than conferring with the agent of
a foreign Government for purposes injurious to his country. It was said
that Judge Innes had, instead of being as he ought to have been the
preserver of peace in the community, suffered a foreign agent to make
communications to him, and then to pass quietly out of his jurisdiction.
The House had now ground sufficient to commence a process of impeachment,
for the simple oath of a person saying that he has good cause to believe
such an one guilty of any offence was sufficient ground for a judge to
commence a prosecution against the person accused, and so also good
ground of suspicion was sufficient for the institution of an impeachment
or incipient process in this case. He thought, therefore, that there was
no occasion for commitment, as it was moved with a view to postpone the
subject.
Mr. FISK was averse to a hasty decision on this subject. He was by no
means convinced of the guilt of Judge Innes; for although the Legislature
of a State had declared an opinion on the subject, States as well as
individuals might err, and it did not become this body to found its
decisions on popular prejudice or reports, but to examine impartially.
Mr. F. then went over the evidence contained in Judge Innes’s deposition
in the case of Judge Sebastian. It did not appear, he said, that Judge
Innes had personal knowledge of the facts which he stated in his
deposition, but from common report, for they were notorious in Kentucky,
and were known in Massachusetts at the same time. He said he wished, as
much as the gentleman from Kentucky, to see our judicial springs pure;
but he wished not to oppress when there was no hope of conviction, nor to
harass when there was no hope of punishing.
MONDAY, April 25.
_General Wilkinson._
Mr. CLARK said it would be recollected by the House, that he had some
time since been directed to make a statement in relation to General
Wilkinson. He now held in his hand a correspondence with the Spanish
Government, which he would lay upon the table, as it went to substantiate
the facts contained in that statement.
These papers were read, and consist chiefly of memoranda in the
handwriting of Philip Nolan, and purporting to be instructions from
General Wilkinson to Thomas Power, and of answers from Thomas Power.
Mr. RANDOLPH moved that they be printed.
Mr. SMILIE opposed the printing, as, if it were indeed testimony, this
House was not the tribunal to decide upon it.
Mr. RANDOLPH said it was certain, that from the noise in the House,
or some other cause, the papers as read could not be understood. They
appeared to embrace a correspondence of Philip Nolan, said to be the
agent of General Wilkinson, with Power, and in the course of them there
was a recommendation that General W.’s handwriting should not be used. He
presumed that gentlemen felt more interested in these than in the papers
every day laid on their table and printed.
Mr. SMILIE said they had had enough of this business of denunciation, and
he wished no more of it. He was willing that the papers should be sent to
the court of inquiry, but he would go no further.
Mr. RANDOLPH called for the yeas and nays on the motion for printing.
Mr. RHEA supported the motion for printing.
The question was then taken by yeas and nays on printing, and carried, 52
to 30.
On motion of Mr. KELLY,
_Resolved_, That the papers and information relative to the
conduct of General James Wilkinson, which have been this
day communicated to this House by DANIEL CLARK, Esq., be
transmitted to the President of the United States.
_Five o’clock, P. M._
_Non-Importation._
The bill from the Senate to authorize the President, under certain
contingencies, to suspend the non-importation law, having been called up,
and a motion having been made to postpone it indefinitely,
Mr. NEWTON begged the House to consider one moment before they postponed
this bill. They had already passed a law authorizing the President of the
United States to suspend the operation of the embargo law, in the event
of a general peace, or such accommodation to neutrals as should render
the commerce of the United States safe. Now, in the event of that law
being suspended, it might also be proper to suspend this.
Mr. NELSON said he should never vote for the repeal or suspension of
this law. He hoped to see the time when it should become a permanent
regulation; he would not yield to any of the powers of Europe, and he
wished to be independent of them. There were many things now imported
from Europe which could as well be made in our own country. If they could
be as well made, he considered it sound policy to give a preference
to our own manufactures, and so far to prohibit theirs as to effect a
preference of our own. Whether in this principle I am right or wrong,
said he, I am certainly right in this: That at this late period of
the session it is impossible to discuss such a question as this, and
therefore I wish the motion to prevail.
Mr. BURWELL said he would add but a single observation to those of
the gentlemen just sat down. He was in favor of postponing the bill
indefinitely, because he wished it to be understood that we have a right
to make all regulations we please respecting our commerce, or trade, or
aught else, without consulting the dispositions of any power whatever. He
wished it to be understood here and elsewhere, and therefore he was in
favor of postponement of this bill.
Mr. MARION said he was one of those who originally voted for the
non-importation law, and he had never repented his vote; but he voted
for it under a firm persuasion that it would go into operation. It had
been afterwards suspended because there was a negotiation pending and
a prospect of accommodation; but if it were the determination never to
suffer it to go into operation, he had much rather see it repealed. If it
were to be kept in suspension, hung up like a rod _in terrorem_, it would
merit ridicule. What cause could there be for suspending it at present?
Any negotiation pending? He believed not. If it were the understanding
of a majority that the bill should not go into operation, he hoped they
would propose a repeal of it.
Mr. EPPES said it appeared that the question of suspension of the
non-importation act was very different from that of a suspension of
the embargo. The former was a measure of coercion on Great Britain,
and whether it had that effect or not, he believed at the time the
law was passed that the only way which we could operate on that power
was by commercial restrictions; and he felt now free to declare, that
if ample reparation were made for the outrage on the Chesapeake, if
the decrees were withdrawn and every injury redressed, that he would
hold on upon the non-importation act so long as the impressment of our
seamen remained. Whenever you take off this, said he, you have nothing
to enforce your rights as to impressment, nor as to that system of
commercial pillage which has been adopted by Great Britain. We know that
the embargo was imposed as a measure of safety. It was to give us time
to make preparation to meet the event. If the decrees which produced
the embargo are withdrawn, the embargo may be withdrawn with propriety.
But let me ask any gentleman whether he believes that any circumstances
which produced the non-importation act will be removed? Whether they
believe that Great Britain will give up her system of impressing seamen?
If he does, let him look at the course she has adopted. After appointing
a Minister to negotiate with you, she has issued a proclamation,
establishing the right of impressment on its broadest footing. Shortly
after, it was declared by the King, at the opening of Parliament, to be
one of those rights which never could nor ever would be admitted. I was
originally in favor of the non-importation law, and I am still so. If
gentlemen take into consideration all the circumstances which produced
the law, I will venture to say that there is not a man in the House
originally in favor of it who can now vote for its suspension. It has
never yet been fairly in operation. It is now indeed a law of the land,
but its operation is virtually suspended by the embargo. I am in favor of
its going into operation, and never will consent to its suspension till
its intended effect be fulfilled, or the experiment is made.
The question of indefinite postponement was carried--58 to 29.
_Home Manufactures._
Mr. BIBB said, that notwithstanding the difference of opinion which had
taken place occasionally between the members of this House during the
present session, on questions of policy, he was pleased to perceive that
no difference of sentiment existed in regard to the injuries done us by
foreign nations. He believed that but one spirit actuated the people of
the United States--that they were attached to their country, and to their
country alone. He wished not only by professions, but by practice, to
show foreign nations that we can live without them. He therefore offered
the following resolution:
_Resolved_, That the members of the House of Representatives
will appear at their next meeting clothed in the manufactures
of their own country.
Mr. MACON would never agree to a resolution which they could not enforce.
Congress have nothing to do with this subject. He could not conceive what
effect this resolution could have. If it was intended as a pledge, he was
not willing to give it; if to have force, he denied their authority to
enforce it.
Mr. RHEA said, if the House adopted the resolution, he should pay no
regard to it. He would appear in what clothing he chose, this resolution
to the contrary notwithstanding.
Mr. EPPES admitted that the resolution could have no force; it was
intended to express the feelings of the House. He should rejoice to see
every member of the House and every man in the nation, clothed entirely
in the manufactures of this country. It would establish an independence
of the best kind. The proposition was a valuable one, and he wished to
God that the ladies could be placed in a situation to adopt a similar
resolution. If he were to appear in the manufactures of his own State,
he must be confined to a homely garb; but if the resolution passed, he
would, before the next season, have cloth manufactured for his use in his
own family. Mr. E. calculated that a million of men in the United States
wore broadcloth coats, and if they were all manufactured in this country
the saving would be immense.
Mr. MACON did not conceive it fair that those who like him had no wives
at home to make them coats, should not only be reproached for their
misfortune, but pointed at as sinners. He had during this session bought
himself a suit, but he was not able to obtain American manufacture. His
friend from Maryland (Mr. NELSON) had procured him a hat, and that was
all that he could obtain of American manufacture. As to the ladies,
if they were to legislate on the subject he did not believe that the
gentleman from Virginia, (Mr. EPPES,) fond as he is of the ladies,
would persuade one in the House, or in the nation, to agree to such a
resolution. Had I a wife, I should be willing to see her dressed to her
own satisfaction. The ladies have a right to dress as they please, and
he did not care who knew it. The gentleman from Virginia reminded him of
a neighbor who used often to say, O, how rich we might be, if it was not
for the expense of eating and clothing!
Mr. BIBB said he had hoped that the resolution would be at once adopted
unanimously. He did not wish to provoke debate, and therefore withdrew
his resolution.
_Adjournment._
Mr. G. W. CAMPBELL, from the committee appointed on the part of this
House, jointly with a committee appointed on the part of the Senate, to
wait on the President of the United States and inform him of the proposed
adjournment of Congress, reported that the committee had performed that
service, and that the President had signified to them that he had no
further communication to make to Congress during the present session.
A message from the Senate informed the House that the Senate, having
completed the legislative business before them, are now ready to adjourn.
_Ordered_, That a message be sent to the Senate to acquaint them that
this House, having finished the business before them, are now about to
adjourn until the day appointed by law for the next meeting of Congress;
and that the Clerk of this House do go with the said message.
The Clerk accordingly went with the said message, and, being returned,
Mr. SPEAKER adjourned the House until the first Monday in November next.
FOOTNOTES
[1] This paragraph is entitled to the careful consideration of
all who aspire to a practical knowledge of the principles of our
Government, and an intimate acquaintance with its early working.
Louisiana had been ceded to the United States by the French
Government: the treaty for the cession was now to be submitted for
the ratification and the legislation which were necessary to carry
it into effect: and the President sets out with showing that he had
legislative authority for what he had done--that the sanction of
Congress had been given to the acquisition beforehand--before the
negotiation had been instituted. It was Congress--the legislative
authority--which had given that previous sanction, held so vital
by Mr. Jefferson: and, notwithstanding that previous sanction, the
treaty, after ratification by the Senate, was to be submitted to
the legislative power, for the exercise of their functions, as to
those conditions which the constitution had vested in Congress.
What these functions were, in the understanding of Mr. Jefferson’s
political school, was to give, or refuse the appropriation
according to the dictates of their own discretion, uncontrolled by
the treaty stipulation.
[2] _Boundaries of the Province of Louisiana, as contained in a
paper communicated by Mr. Jefferson to Congress._
The precise boundaries of Louisiana, westward of the Mississippi,
though very extensive, are at present involved in some obscurity.
Data are equally wanting to assign with precision its northern
extent. From the source of the Mississippi, it is bounded
eastwardly, by the middle of the channel of that river, to the
thirty-first degree of latitude; thence, it is asserted, upon
very strong grounds, that, according to its limits, when formerly
possessed by France, it stretches to the east as far, at least, as
the river Perdido, which runs into the bay of Mexico, eastward of
the river Mobile.
It may be consistent with the view of these notes to remark,
that Louisiana, including the Mobile settlements, was discovered
and peopled by the French, whose monarchs made several grants of
its trade, in particular to Mr. Crozat, in 1712, and some years
afterwards, with his acquiescence, to the well-known company
projected by Mr. Law. This company was relinquished in the year
1731. By a secret convention, on the 3d November, 1762, the French
Government ceded so much of the province as lies beyond the
Mississippi, as well as the island of New Orleans, to Spain; and,
by the treaty of peace which followed in 1763, the whole territory
of France and Spain, eastward of the middle of the Mississippi, to
the Iberville, thence, through the middle of that river and the
lakes Maurepas and Pontchartrain to the sea, was ceded to Great
Britain. Spain having conquered the Floridas from Great Britain,
during our Revolutionary war, they were confirmed to her by the
Treaty of Peace of 1784. By the Treaty of St. Ildefonso, of the 1st
of October, 1800, His Catholic Majesty promises and engages on his
part to cede back to the French Republic, six months after the full
and entire execution of the conditions and stipulations therein
contained, relative to the Duke of Parma, “the colony or province
of Louisiana, with the same extent that it actually has in the
hands of Spain, that it had when France possessed it, and such as
it ought to be after the treaties subsequently entered into between
Spain and other States.” This treaty was confirmed and enforced by
that of Madrid, of the 21st of March, 1801. From France it passed
to us by the Treaty of the 30th of April last, with a reference to
the above clause as descriptive of the limits ceded.
[3] The bill thus passed was in these words:
“That the President of the United States be, and he is hereby,
authorized to take possession of, and occupy the territories
ceded by France to the United States, by the treaty concluded
at Paris on the thirteenth day of April last, between the two
nations, and that he may for that purpose, and in order to
maintain in the said territories the authority of the United
States, employ any part of the army or navy of the United
States, and of the force authorized by an act passed the third
day of March last, entitled “An act directing a detachment from
the militia of the United States, and for erecting certain
arsenals,” which he may deem necessary; and so much of the sum
appropriated by the said act as may be necessary, is hereby
appropriated for the purpose of carrying this act into effect;
to be applied under the direction of the President of the
United States.
“SEC. 2. _And be it further enacted_, That until the expiration
of the present session of Congress, unless provision for the
temporary government of the said territories be sooner made
by Congress, all the military, civil, and judicial powers
exercised by the officers of the existing government of the
same, shall be vested in such person and persons, and shall be
exercised in such manner, as the President of the United States
shall direct, for maintaining and protecting the inhabitants of
Louisiana in the free enjoyment of their liberty, property, and
religion.”
From the terms of this act, and especially of the second section,
it is seen that the Spanish system of government was continued in
the ceded territory after it became the property of the United
States, and that the military, the civil, and judicial powers
of the Spanish Intendants (for France never took possession of
the country except to deliver it to the United States), were
transferred by law to such persons as the President should appoint.
The powers of the Spanish Intendants, as all know, were an
emanation of the despotic power of the kings of Spain, and wholly
incompatible with our constitution--a very clear declaration of
Congress that the constitution did not extend to the territory,
and that its inhabitants could claim no rights under it: and this
declaration was in consonance with all the previous acts for the
government of territories, all of which were inconsistent with the
constitution.
[4] The practice of pronouncing eulogiums on deceased members,
adjourning the two houses, and attending the funeral in procession,
had not then been adopted. A mourning for thirty days (which was
the length of time which the children of Israel wept for the death
of Moses in the Valley of Moab), was the simple and expressive sign
of respect.
[5] The following is the act:
That the act of Congress passed on the fourth of April, one
thousand eight hundred, entitled “An act to establish a uniform
system of Bankruptcy throughout the United States,” shall be, and
the same is hereby, repealed: _Provided, nevertheless_, That the
repeal of the said act shall in no wise affect the execution of any
commission of bankruptcy which may have been issued prior to the
passing of this act, but every such commission may and shall be
proceeded on and fully executed as though this act had not passed.
[6] This act, as passed, asserted full power in Congress to
legislate upon slavery in the Territories without regard to the
constitution, or any of its provisions in relation to the States,
or the rights of the States within themselves, or between each
other. Thus: 1. It prohibited the foreign importation of slaves
into the Territory at once, which, with respect to a State, could
not be done before 1808. 2. It prohibited the domestic importation
of any slave into the Territory which had been imported from
abroad since the year 1798. 3. It prohibited the carrying of any
slave whatever into the Territory, except by a citizen of the
United States removing into it for actual settlement, and being
at the time the _bona fide_ owner of such slave. These were three
provisions which could not be adopted towards the States; and for
their violation a fine was incurred by the importer, and freedom
attached to the slave--penalties which Congress could prescribe
within no State.
The following is the section containing these prohibitions and
penalties:
“SEC. 10. It shall not be lawful for any person or persons
to import or bring into the said Territory, from any port or
place without the limits of the United States, or cause or
procure to be so imported or brought, or knowingly to aid or
assist in importing or bringing any slave or slaves. And every
person so offending, and being thereof convicted before any
court within said Territory, having competent jurisdiction,
shall forfeit and pay for each and every slave so imported
or brought, the sum of three hundred dollars; one moiety for
the use of the United States, and the other moiety for the
use of the person or persons who shall sue for the same; and
every slave so imported or brought, shall thereupon become
entitled to and receive his or her freedom. It shall not be
lawful for any person or persons to import or bring into the
said Territory, from any port or place within the limits of
the United States, or to cause or procure to be so imported
or brought, or knowingly to aid or assist in so importing or
bringing any slave or slaves, which shall have been imported
since the first day of May, one thousand seven hundred and
ninety-eight, into any port or place within the limits of the
United States, or which may hereafter be so imported from any
port or place without the limits of the United States; and
every person so offending and being thereof convicted before
any court within said Territory, having competent jurisdiction,
shall forfeit and pay for each and every slave so imported
or brought from without the United States, the sum of three
hundred dollars, one moiety for the use of the United States,
and the other moiety for the use of the person or persons who
shall sue for the same; and no slave or slaves shall directly
or indirectly be introduced into said Territory, except by a
citizen of the United States removing into said Territory for
actual settlement, and being at the time of such removal _bona
fide_ owner of such slave or slaves; and every slave imported
or brought into the said Territory, contrary to the provisions
of this act, shall thereupon be entitled to, and receive his or
her freedom.”
This section applied to Lower Louisiana, called the Territory
of Orleans. No provision on the subject of slavery was made in
the act for the government of Upper Louisiana, afterwards called
the Territory of Missouri. And thus, by legislating fully on the
subject in one Territory, and not at all in the other, Congress
asserted its right to do as it pleased with slavery in such places,
uncontrolled by any power but its own will.
[7] At the time of passing the second bankrupt act in 1841--that is
to say, after the lapse of forty years--it was shown that there was
still property of bankrupts in the hands of assignees, the estate
being so administered as to pay expenses, yielding nothing to the
creditors, and leaving nothing to the debtors.
[8] There are three grades of Territorial government, all based
upon the idea of pupillage in the Territory, and of sovereignty
and guardianship in the Federal Government. The first grade, as
in the case of mere children, allowed the inhabitants no voice
in their own government: a Governor and Judges, appointed by the
Federal Government, adopted laws from the codes of the States,
and executed them. The second grade, as in the case of children
advancing towards the years of discretion, (to whom a father
allows some latitude of will,) admitted the inhabitants to some
share in their government, by giving them a Council composed of
their own citizens, (but appointed by the President,) to act
with the Judges in adopting the laws. The third grade, as in the
case of children arrived at the years of discretion, but not yet
of full age, allowed them a Territorial Legislature, consisting
of a House of Representatives, elected by themselves, a Council
appointed by the President, and liberty to originate and enact
laws; but all their acts as in those of the two other grades,
subject to the approbation of Congress. From this grade the
Territory, on attaining the population which would give a right
to one Representative in Congress, would pass into the class
of States, on an equal footing in all respects with the other
States, and entitled of _right_ to all the benefits of the federal
constitution. Before this transition, the Territories had no
_rights_ under the constitution. They were governed independently
of the constitution, and contrary to it. They had no benefits from
it, except such as Congress, in its discretion, chose to extend
to them. They were governed as property: the soil, as a sovereign
owner would govern his property; the inhabitants, as a father would
take care of his children, looking to their ultimate equality
with himself, and preparing them to enjoy that equality as soon
as prepared for it. It was this graduated form of Territorial
government, in its three regular degrees, to which Mr. Macon was
so much attached. It was devised by the “Old Congress,” as he
called it--the Congress of the confederation--and received its
features from the organizing mind of Mr. Jefferson when he was
a member of that Congress in 1784. Neither under the Articles
of the Confederation, nor under the Federal Constitution, had
the Territories had any _rights_: they were governed as property
according to the will of Congress, uncontrolled by any authority,
except the limitations and conditions expressed in the deeds of
cession from the States, or in the treaties with foreign powers by
which they were ceded. All this is abundantly evident in all the
legislation of Congress upon the subject, and in none more so than
in the government of Lower Louisiana.
[9] The _judicial_ power of the Territory remained as provided for
in the 4th section, in judges appointed for four years, and without
the right of jury trial in civil cases. The _legislative_ power was
vested in a Governor and council appointed by the President, and
their acts subject to the approval or disapproval of Congress. The
following is the section:
SEC. 4. The legislative powers shall be vested in the Governor,
and in thirteen of the most fit and discreet persons of the
Territory, to be called the Legislative Council, who shall be
appointed annually by the President of the United States from
among those holding real estate therein, and who shall have
resided one year at least in the said Territory, and hold no
office of profit under the Territory or the United States.
The Governor, by and with advice and consent of the said
Legislative Council, or of a majority of them, shall have power
to alter, modify, or repeal the laws which may be in force at
the commencement of this act. Their legislative powers shall
also extend to all the rightful subjects of legislation; but no
law shall be valid which is inconsistent with the Constitution
and laws of the United States, or which shall lay any person
under restraint, burden, or disability, on account of his
religious opinions, professions, or worship; in all which he
shall be free to maintain his own, and not burdened for those
of another. The Governor shall publish throughout the said
Territory all the laws which shall be made, and shall from
time to time report the same to the President of the United
States, to be laid before Congress; which, if disapproved of by
Congress, shall thenceforth be of no force.
[10] The yeas and nays were so nearly the same on every question
that one set will answer for the whole.
[11] Of the 21 who voted against this bill, almost the whole were
from the non-slaveholding States.
[12] The object of this bill was, not to increase the amount of
duty, but to increase the list of specific duties by transferring
_ad valorems_ to it as a means of diminishing frauds and the
expenses of collection.
[13] This was the whole ceremony. No eulogium was pronounced, nor
any adjournment moved, and in the House of Representatives the
event was not noticed. And this was the custom at that early time.
[14] This was the commencement of Mr. GAILLARD’s long Senatorial
service, terminated only by death, and during which, from vacancies
and absences in the Vice Presidential office, he was almost
continually President _pro tempore_ of the Senate.
[15] This was after the duel of Col. Burr with General Hamilton,
which event probably influenced the negative vote.
[16] A more beautiful or more patriotic address was never
delivered. How little could the hearers have supposed that, in
three years, the author would be on trial for High Treason.
[17] The interference of the Internal Revenue officers with the
politics of the country, was one of the reasons for preferring the
system of Custom House Duties to direct taxes; it may be a question
whether the concentration of the revenue officers in the Custom
Houses, and the vast number which the _ad valorem_ system admits
of, may not have given to that evil a more dangerous form.
[18] Roads, rivers, canals--their construction or improvement so
long the vexed question of Federal power, have been superseded as
national questions by the progress of science, and the force of
individual enterprise. Railroads have put an end to that question,
and with it, all the old maxims of preparing for war in time. They
are the largest, cheapest, and most effective preparation for war,
that the world ever saw, being the realization of the whole art of
war; to wit: The concentration in the shortest time of the greatest
number of troops. By these roads the United States would throw
millions of citizen soldiers, if needed, on any one point in a very
few days.
[19] We understand, that in correspondence with the Parliamentary
practice of England, no chair was, previously to the introduction
of Mr. Chase, assigned him; but that an informal intimation was
made to him, that, on his requesting it, it would be allowed.
[20] During these proceedings, neither the managers nor the House
of Representatives were present.
[21] The argumentative parts of the answer are omitted as being
reproduced in the pleadings.
[22] Mr. Jefferson.
[23] These words, used by Mr. Randolph as a quotation,--they were
quoted from Lord Chatham,--afterwards (during the Mexican war) were
repeated as original in the American Senate.
[24] On the 7th February following, Mr. Granger addressed the
annexed explanatory letter to the Speaker:--
WASHINGTON CITY, Feb. 7, 1805.
SIR,--My sole object in addressing to Congress my letter of
the first of the present month was to gain an opportunity of
refuting the charges and insinuations which had been made
against me. The little reflection I could give the subject
induced me to believe that it was proper, in a respectful
manner, to repel the charges publicly, and in the place where
they were made. Nor did it occur to me that the right of an
officer to defend his character depended upon the office he
happened to hold.
If, however, I erred in this, I presume it cannot be wrong,
in defence of my reputation, to address you in your private
character as a gentleman. I will own that I am desirous of
retaining your friendship and confidence. I will own that I
am not indifferent to public opinion, and that I seek the
confidence and esteem of my fellow-citizens by the even tenor
of a well-spent life, and a regular discharge of all the social
duties--not by lessening the esteem and confidence to which
others are entitled.
Various charges have been made against me for the interest I
have in the Georgia grants--for my being an agent of the New
England Company, and for my conduct as such agent. As these
charges have not yet appeared in print, I cannot give that
specific answer which may hereafter become necessary, and for
which I pledge myself to the public, in case such necessity
should exist.
I now take the liberty of stating how I became interested in
the claims, how the agency was accepted, and what has been my
conduct as agent.
First, as to my interest.
When the members of the New England Company formed their
contract with William Williamson as agent for the Georgia
Mississippi Company, in September, 1795, I had not the least
interest in the concern. Upon the advice of my friends, and
at their solicitation, between that period and the first of
December, I agreed to become interested, and accepted of
a certain share, which was procured for me by a voluntary
relinquishment of a part by several gentlemen for that purpose.
In January, 1796, the agents came on from Georgia to give
the conveyance, and I was deputed as agent for many of the
proprietors near Connecticut river; to discharge which trust
I proceeded to Boston. Before the business was closed my
principals arrived; a variety of considerations induced me to
relinquish the adventure, such as the difference of climate,
the distance of the property, the warlike habits of the
natives, and the want of capital, and before the time of which
I am about to speak, I relinquished my right to two friends
from Connecticut. Thus my concern with the Georgia lands, as I
thought, was closed for ever. But on the evening of the Sunday
next preceding the second Tuesday of February, 1796, Ashbel
Stanley, then of Coventry, in Connecticut, applied to Oliver
Phelps, Esq., and myself, and requested us to become surety for
him and Jeremiah Ripley, Esq., of said Coventry, (they being
partners in trade,) to the Georgia agents, for the space of
sixty days, to the amount of $75,000, and assigned for reason
that the agents would not take notes signed in the name of the
firm, and that he only wanted our names till he could have an
opportunity to procure the name of Judge Ripley as an endorser
to his notes. The great esteem I had for Judge Ripley, and a
knowledge of his ability, induced me to give Mr. Phelps, as
I was about to return to Connecticut, a written engagement
to assume one-third of the risk, in case he should think it
best to make the endorsement. Mr. Phelps made the endorsement
for Stanley, and took into his hands, as security, Stanley’s
conveyance of seven hundred and fifty thousand acres of Georgia
Mississippi Company’s land, for which the endorsement was
given; and, also, an assignment by Stanley of one hundred
thousand acres more, which Seth Wetmore assigned to Stanley.
Stanley failed. Judge Ripley denied the authority of Stanley
to use his name in a land contract, and Mr. Phelps and myself,
as endorsers, had to meet the $75,000. On the fourth day of
May, one thousand seven hundred and ninety-eight, we satisfied
these obligations, and they were cancelled and delivered up.
To acquire the means of satisfying these endorsements, we were
compelled to dispose of 670,000 acres of his land, besides
a vast deal of other property. When we called for the scrip
on the two thousand acres, conveyed by Wetmore to Stanley,
and by Stanley to Phelps, we found that Wetmore had conveyed
the same land to Israel Munson, merchant in Boston. Here a
new difficulty presented itself, which has been but lately
removed. On the 30th of August, 1803, Mr. Phelps, to enable
me to close this dispute, gave me a conveyance of these one
hundred thousand acres; and on the 8th of September, in the
same year, I effected a final settlement with Mr. Munson, of
his claim for the joint benefit of Phelps and Granger. This
explains the conveyances from Mr. Phelps and Mr. Munson to me,
and these facts can be proved by these gentlemen, and by Judge
Ripley, Amasa Jackson, Esq., of New York, Joseph Lyman, Esq.,
of Northampton, Massachusetts, Clerk of the Supreme Court, John
Peck, &c.
On record will also be found a conveyance of one hundred
thousand acres, of December 8th, 1803, from John Peck to me. In
this property I have not the least interest. It is deposited
in my hands in lieu of special bail, in two cases, in favor of
Eli Williams, of Hagerstown, against John Peck, of Boston, now
pending before the court in this district. John Thompson Mason,
Esq., knows this fact.
Finally, I have never been a dealer in this property, nor
otherwise than is herein stated, interested therein; excepting
only that in one instance I have received some scrip of a
gentleman, whose fortune was consumed by his adventuring in the
property, for a demand which was subsisting before the 13th of
February, 1796.
Secondly, As to my accepting the agency. On the 17th day of
February, 1803, the Commissioners on the part of the United
States reported to Congress in favor of a compromise of these
claims and Congress afterwards, in the same session, made an
appropriation of the 5,000,000 acres of land, to satisfy such
demands as Congress might think best to provide for. Thus stood
the business without a single objection within my knowledge to
a compromise, when, in August, 1803, one of the directors of
the New England Mississippi Company, solicited me to accept an
agency in the business. Although I could not see any objection
to it, as I was personally interested, and the duties of my
office had not the least possible relation to the business,
still I was not willing to accept the agency without advice.
Accordingly I stated the case to the last Attorney-General,
who suggested that he would not be understood to give any
opinion on the subject, but for his part he could not perceive
the least objection to my acceptance. After this the agency
was accepted, and I can with the greatest truth aver, that I
then had not the least idea of any objection on the part of
Congress. The only difficulty contemplated was that of bringing
the claimants and the Commissioners to an agreement.
Lastly. As to my conduct as agent. I acknowledge that I have,
in an open, fair, and plain manner, vindicated the rights of
the company I represent. But I deny my attempting to make use
of any kind of influence.
Here I appeal to the Commissioners, whether I have ever
attempted to press any thing in relation to the business. I
make the same appeal to you, sir, and to every other member of
the two Houses of Congress. If I have been guilty of what is
charged upon me, there must be some one ready to rise up, and
bear testimony against me. I trust I have virtue enough not to
attempt improperly to influence any man. If not, I hold the
members of Congress in too high respect to deem them capable of
yielding to any improper influence.
For the truth of this statement, I appeal to the Author of my
existence; and, in support of it, I pledge my character to you
and to my country. I cannot close this letter without offering
my ardent desire for an investigation of my conduct.
I am, sir, with high esteem and respect, your humble servant,
GIDEON GRANGER.
[25] An act of Congress has since passed to prevent members from
taking government contracts; but the act did not extend to their
sons, brothers, and nephews, and the spirit of it has been often
eluded.
[26] Mr. Randolph was the great opposer of these claims in
Congress, and General Jackson their great opposer in Georgia. It
was he who roused the feeling which overthrew the General Assembly
who made the grant, and elected the legislature which annulled
their act, and burnt the record of it. He was in the Senate of the
U. S. with Mr. James Gunn, the Senator alluded to in the debate as
being engaged in the fraud, and lost his life in the last of the
many duels which his opposition to this measure brought upon him.
[27] With this session ended the first term of Mr. Jefferson’s
administration, and the end of that term presents a natural
occasion for reviewing the working of the Government in its point
of chief contact with the people--_receipts and expenditures_.
These were kept at the lowest point. The internal taxes had been
repealed: the custom house duties had not been increased. For,
though the change of many articles from the _ad valorem_ to the
specific list, had the effect of increasing the revenue, yet it did
not increase the duty, the object being to prevent frauds and to
simplify and cheapen the collection. The duties themselves, both
the specific and the _ad valorem_, remained at the low and moderate
rates which characterized the early periods of our Government.
The average of the specifics, on the leading articles, were: on
spirits, 29 cents per gallon; on wines, 32 cents per gallon; on
teas, 16 cents per pound; on coffee, 5 cents per pound; on sugars,
2½ cents per pound; on molasses, 5 cents per gallon. The _ad
valorems_ were simplified to three rates, which in fact were but
two, the third and highest rate only applying to luxuries, which
were but little imported; and the lowest rate applying to the bulk
of the importations. Thus the highest rate (20 per centum) in an
importation of near forty million dollars worth of merchandise
paying _ad valorem_ duties, only fell upon $425,000 of that
quantity, while the 15 per cent. fell upon $7,640,000 worth, and
the 12½ per cent. rate fell upon 31 millions of dollars worth.
The average of all the _ad valorems_ was about 13 per centum; and
such was the cheapness of this simplicity of impost, that the cost
of collection was only about 4 per centum, and the revenue cutter
service almost null. The net revenue yielded was twelve millions
and a quarter, of which there went to the principal and interest
of the public debt, about eight millions; to the army and navy,
about two millions; miscellanies, about half a million; tribute to
Algiers, near $200,000; diplomatic intercourse, $60,000; and about
$600,000 to the civil list--comprehending the entire _support_
of the Government in all its branches--executive, judicial, and
legislative. And thus the moderate duties of that time, upon the
moderate importation of that time, with the economy of that time,
produced nearly twenty times the amount of revenue which the
_support_ of the Federal Government required.
[28] Okefonokee Swamp, covering one-fourth of Georgia, 15,000
square miles--the great refuge of fugitive slaves, white outlaws,
and depredating Indians.
[29] The whole object of the bill was the purchase of Florida, but
it not being desirable to avow that purpose, the object was covered
up in the vague phrases of extraordinary expenses in foreign
intercourse. The following is the act as passed:
That a sum of two millions of dollars be, and the same is
hereby appropriated towards defraying any extraordinary
expenses which may be incurred in the intercourse between the
United States and foreign nations, to be paid out of any money
in the Treasury not otherwise appropriated, and to be applied
under the direction of the President of the United States, who
shall cause an account thereof to be laid before Congress as
soon as may be.
[30] The Marquis de Casa Yrujo. He was recalled.
[31] This expunging was so complete that no vestige of the expunged
matter appears in the Journal; but it is otherwise well known what
it was. The two named persons had presented memorials, which had
been received and read, stating that they were under a criminal
prosecution, now depending in the Circuit Court of the United
States for the district of New York, for an alleged offence against
the laws of the United States, in which, if guilty, they have
been led into error by the conduct of officers of the Executive
Government, who now intend to bring upon the memorialists the
penalties of the laws, to sacrifice their characters, fortunes,
and liberty, in expiation of their own errors, or to deprecate the
vengeance of foreign Governments, by offering the memorialists
as victims to their resentment: that they have also experienced
great oppression and injustice in the manner of conducting the
said prosecution; and praying such relief therein as the wisdom of
Congress may think proper to grant.
The prosecution was for an alleged breach of the neutrality laws,
in fitting out a vessel from New York against a Power with whom the
United States were at peace, to wit, the King of Spain. The vessel
was the _Leander_, and built for General Miranda, then engaged in
his South American expedition. The implications of the Executive
Government which the memorials charged, were voted, by the House of
Representatives, to be unsupported and reprehensible, and ordered
to be returned to the parties from whom they came. The following
was the resolve, adopted nearly unanimously, on the motion of Mr.
Early:
_Resolved_, That the charges contained in the memorials of
S. G. Ogden and William Smith are, in the opinion of this
House, unsupported by any evidence which, in the least degree,
criminates the Executive Government of this country; that the
said memorials appear to have been presented at a time and
under circumstances insidiously calculated to excite unjust
suspicions in the minds of the good people of this nation
against the existing Administration of the General Government,
and that it would be highly improper in this House to take any
step which might influence or prejudice a cause now pending in
a legal tribunal of the United States. Therefore, _Resolved_,
That the said memorials be by the Clerk of this House returned
to those from whom they came.
[32] The constitutional power of Congress to prohibit the
importation of slaves into States, did not accrue till the year
1808; but Territories not being States, the constitutional
prohibition had no application to them.
[33] This was the public commencement of Mr. Randolph’s
separation from the Administration of Mr. Jefferson; but his
dissatisfaction had begun before, at the retention of Mr. Granger,
Postmaster-General, in the Cabinet, after it was known that he was
the agent of the New England Mississippi Land Company.
[34] Since the statute of 13th William the Third, the British
Judges are removable upon the joint address of the two Houses of
Parliament, notwithstanding they are commissioned, since that
statute, during good behaviour--_quamdiu se bene gesserint_.
Before that time they were commissioned during the royal
pleasure--_durante bene placito_: and it was usual, during
profligate reigns, when convictions of obnoxious persons were
required, to remove such of the judges as could not be relied on,
and appoint a subservient set in their place. The act of William
the Third made them independent of the King, but not of the
Parliament representing the country. Their independence of the
crown was completed by the statute 1 George III., which prevented
the vacation of their commissions on the demise of the sovereign.
[35] This is the true view of the constitution, and of our policy,
and the motive to the confederation of 1778, and to Union of
1787. Defence was the object, and the policy--so declared in the
instruments of confederation and of Union, and so proclaimed by
every consideration of policy. And for defence, the United States
are the strongest power in the world. Her railroads in a few days
would place a million of volunteers, if needed, on any point of
land attack: her privateers would clear the seas of the enemy’s
commerce. And these two great means of defence would be as cheap as
effective; superseding the old expensive policy of “_preparing for
war in time of peace_.”
[36] The practice of pronouncing funeral eulogiums over deceased
members had not been yet adopted. Attending the funeral, and
wearing the badge of mourning, were deemed the adequate honor;
and well worthy was General James Jackson of it. He was a man of
marked character, high principle, and strong temperament--honest,
patriotic, brave--hating tyranny, oppression, and meanness in every
form; the bold denouncer of crime in high as well as in low places;
a ready speaker, and as ready with his pistol as his tongue, and
involved in many duels on account of his hot opposition to criminal
measures. The defeat of the Yazoo fraud was the most signal act
of his legislative life, for which he paid the penalty of his
life--dying of wounds received in the last of the many duels which
his undaunted attacks upon that measure brought upon him.
[37] The item for contingent expenses of the Navy, comprises
commissions to agents to foreign countries and in the United
States, officers’ travelling expenses, expense of conveying seamen
from one port to another, as for instance where seamen are entered
in Philadelphia or Baltimore to join a vessel fitting out at
Washington, the expense of nautical instruments, such as compasses,
quadrants, spy-glasses, &c., charts, books, models, drawings,
signals, lanterns, oil, candles, clamps, fuel, hammocks, trumpets,
glass, cisterns, cases, mess kids, axes, gridirons, tea kettles,
galleys, shovels, tongs, charcoal, sulphur, saltpetre, fire
engines, fire buckets, bread bags, and an infinite variety of other
such articles, not expressly provided by law.
[38] Two frigates.
[39] The item for ordnance comprises cannon, carronades, swivels,
blunderbusses, muskets, pistols, swords, boarding-pikes, cutlasses,
cannon ball of every description, musket and pistol ball, cannon,
musket, pistol and priming powder, powder horns, priming horns,
flannel and paper cartridges, cartridge boxes, slow match, lint
stocks, worms, rammers, sponges, wads, gun-locks, screw-drivers,
flints, cartridge thread, &c.
[40] The error which now prevails (with so many) on the subject
of the fishing bounties and allowances, is one which strongly
illustrates the evil in our legislators, of not being sufficiently
acquainted with our early Congressional history. They are now held
by many--by enough to prevent their repeal--to be bounties out of
the Treasury for the encouragement of the fisheries as a nursery
of seamen, when their whole history proves that they were denied
when asked on that ground, (bounties out of the Treasury to any
branch of industry being equally unconstitutional and impolitic,)
and only granted on the principle of drawback--as a refunding of
duty paid on foreign salt exported on fish; and as such applied at
first to all salted provisions, both beef and pork as well as to
fish. And as such drawback these bounties and allowances rose and
fell with the salt tax as long as national legislation was under
the control of our earlier generation of statesmen; but since near
thirty years this dependence of the bounties and allowances upon
the salt tax has ceased to be known, and, while the duty has been
undergoing reductions, the bounties and allowances have remained
at the highest rate they ever attained when the salt duty was at
its highest rate. The want of this knowledge has cost the public
treasury some millions of dollars; and is still costing it some
hundreds of thousands annually.
[41] The application of steam power to the propulsion of boats
on water and cars on land, under the enterprise of private
individuals, has superseded all the old ideas of federal internal
improvement by roads, rivers, and canals.
[42] This is the first appearance of Mr. Clay in either House of
Congress.
[43] The following are the letters:
NASHVILLE, Jan. 8, 1807.
SIR: I received your instructions, dated the 2d instant,
and agreeably thereto, I delivered your letter, addressed
to General Thomas Johnson, to Colonel Cheatham, and it was
forwarded to him immediately. I arrived at Centreville on
the 4th instant; heard a report there that Colonel Burr had
gone down the river with one thousand armed men; arrived at
the mouth of Cumberland river that evening, and made inquiry
concerning Colonel Burr, and was informed that he left that
place on the 28th December, 1806, with ten boats, of different
descriptions; had sixty men on board, but no appearance of
arms. I left there on the 5th instant, and arrived at Fort
Massac that evening; delivered your letter to Captain Bissel,
and received his answer; made some inquiries of him, and was
informed that Colonel Burr had left that place on the 30th
December, 1806, with ten boats. He likewise informed me that he
had been on board the boats, and seen no appearance of arms or
ammunition. On my return to the mouth of Cumberland river, I
was informed that three boats had been stopped at Louisville,
with a quantity of ammunition. There are about fifty men
stationed at the mouth of Cumberland, under command of Colonel
Ramsey.
I remain, with the highest esteem, yours,
JOHN MURRELL.
GEN. ANDREW JACKSON.
* * * * *
FORT MASSAC, Jan. 5, 1807.
SIR: This day, per express, I had the honor to receive your
very interesting letter of the 2d instant; I shall pay due
respect to its contents; as yet I have not received the
President’s Proclamation alluded to, nor have I received any
orders from the Department of War relative to the subject
matter of your letter.
There has not, to my knowledge, been any assemblage of men
or boats, at this or any other place, unauthorized by law
or precedency; but, should any thing of the kind make its
appearance, which carries with it the least mark of suspicion,
as having illegal enterprises or projects in view, hostile to
the peace and good order of Government, I shall, with as much
ardor and energy as the case will admit, endeavor to bring to
justice all such offenders.
For more than two weeks last past I have made it a point to
make myself acquainted with the loading and situation of all
boats descending the river. As yet there has nothing the least
alarming appeared. On or about the 31st ultimo, Colonel Burr,
late Vice President of the United States, passed this with
about ten boats, of different descriptions, navigated with
about six men each, having nothing on board that would even
suffer a conjecture, more than a man bound to market; he has
descended the rivers towards Orleans. Should any thing, to my
knowledge, transpire, interesting to Government, I will give
the most early notice in my power.
I have the honor to be, respectfully, sir, your obedient
servant,
DANIEL BISSEL.
GENERAL ANDREW JACKSON.
[44] With this agreed the practice of all the free States at
that time, and the laws of several of them--as New York and
Pennsylvania--in the former of which nine months, and in the latter
six months, was allowed to the sojourner and traveller to depart
with his slave, with the alternative of taking the character of a
resident if he remains longer, and thereby subjecting his slave to
the emancipation laws of the State.
[45] The bill was passed through the House with only five
dissenting votes, and through the Senate with nearly equal
unanimity. The following is a copy of the act:
That, from and after the thirtieth day of June next, the
act, entitled “An act laying an additional duty on salt
imported into the United States, and for other purposes,”
passed the eighth day of July, one thousand seven hundred and
ninety-seven, shall be, and the same hereby is, repealed, and
that, from and after the thirty-first day of December next, so
much of any act as lays a duty on imported salt be, and the
same hereby is, repealed; and, from and after the day last
aforesaid, salt shall be imported into the United States free
of duty: _Provided_, That for the recovery and receipt of
such duties as shall have accrued, and on the days aforesaid,
respectively, remain outstanding, and for the recovery and
distribution of fines, penalties, and forfeitures, and the
remission thereof, which shall have been incurred before and on
the said days, respectively, the provisions of the aforesaid
act shall remain in full force and virtue.
SEC. 2. _And be it further enacted_, That, from and after the
first day of January next, so much of any act as allows a
bounty on exported salt, provisions and pickled fish, in lieu
of drawback of the duties on the salt employed in curing the
same, and so much of any act as makes allowance to the owners
and crews of fishing vessels, in lieu of drawback of the duties
paid on the salt used by the same, shall be, and the same
hereby is, repealed: _Provided_, That the provisions of the
aforesaid acts shall remain in full force and virtue for the
payment of the bounties or allowances incurred or payable on
the first day of January next.
☞ Throughout the entire debate on the bill, there was not a word of
objection to the bounties and allowances falling with the salt tax.
[46] The motion to “reject” a bill is one of indignity to it. It is
equivalent to declaring that it is unworthy of consideration, and
therefore to be driven out of the House on learning what it is from
the first reading, (which is only for information,) without going
to the second reading, which is for consideration.
[47] Only five dissentients, and they both from free and slave
States, and dissenting upon matters of detail. So that the
prohibition of the trade itself may be considered unanimous.
[48] The bill from the Senate to suspend the privilege of the
writ of _habeas corpus_ had been rejected in the House, and this
movement was for the better securing the privilege in future.
Although prospective in its terms and object, the debate upon it
was chiefly retrospective, looking back to the arrest of persons
in New Orleans as accomplices of Burr; and thus possesses a double
interest, as connecting itself with history while discussing a
question of the greatest interest to the liberty of the citizen.
[49] This alludes to the early conspiracy to separate Kentucky from
the Union, while the Spaniards held the mouth of the Mississippi,
and, with it, a check upon the exports of the West. The conspiracy
existed--the Spanish Governor General at New Orleans, and some
leading citizens of Kentucky, the parties. Spanish money was paid
to some of these citizens--some were even stipendiaries, receiving
annual sums for their treacherous service to Spain. General
Wilkinson had the misfortune to be implicated in this conspiracy,
but the proof of it was never made out.
[50] He had been tried at Richmond, Va., (Chief Justice Marshall
presiding,) on two indictments--one, for high treason, in levying
war against the United States; the other, for a misdemeanor in
setting on foot, within the United States, a military expedition
against a power with whom the United States were at peace,
_to wit_, Spain; and had been acquitted on both trials, under
instructions from the Court. First. That the acts proved under
the treason indictment, did not amount to levying war against the
United States. Second. That the military expedition against Spain
was set on foot in Ohio, and not in Virginia, and therefore not
triable in Virginia. Col. Burr was recognized to appear and answer
to this charge in Ohio, but forfeited the recognizance, and the
United States for many years.
[51] It was dated 29th July.
[52] Joseph Hamilton Daviess, of Kentucky, the able lawyer,
brilliant pleader, and ardent patriot, killed at Tippecanoe at the
head of a night charge upon the Indians.
[53] YEAS.--Messrs. Adams, Anderson, Bradley, Breckenridge, Brown,
Cocke, Condit, Dayton, Gaillard, Jackson, Mitchill, Moore, Smith
of Maryland, Smith of New York, Smith of Ohio, Smith of Vermont,
White, and Wright--18.
NAYS.--Messrs. Baldwin, Ellery, Franklin, Hillhouse, Howland,
Logan, Maclay, Olcott, Pickering, Plumer, Stone, Sumter, and
Worthington--13.
[54] In consequence of this vote Mr. Smith withdrew from the
Senate, and resigned his place in a letter (affirming and arguing
his innocence) to the Governor of Ohio.
[55] This contested election, as involving a point of
constitutional law, to wit, whether a State Legislature can
add to, or diminish, the representative qualifications which
the constitution prescribes? rises above a question between
individuals, and becomes an exception to the general rule of this
abridgment, to omit reports, debates, and proceedings on contested
elections. The report of the committee, after extended debate, was
agreed to by the House, almost unanimously--89 to 18.
[56] This is a sensible speech, and its recommendations have
since been adopted in practice by all the States, except in the
classification of the militia and the estimate of volunteers.
Experience--that of the war of 1812, and the late war with
Mexico--has since proved that volunteers may be relied upon for all
_active_ service in the United States, either at home or abroad;
and that, with the facilities of railroad transportation, such
accumulated masses may be thrown upon any point as to crush any
invading force. In fact, with railroads and volunteers, the idea of
invasion has become obsolete, and the word never mentioned except
from habit and past associations.
INDEX TO VOL. III.
A
_Act, Embargo, the_, 641.
ADAIR, JOHN, Senator from Kentucky, 348; on British aggressions
on our commerce, 358.
ADAMS, JOHN QUINCY, Senator from Massachusetts, 6, 163,
345, 485, 547; for the issue of stock for the purchase of
Louisiana, 18; on the amendment to the constitution relative
to the election of President, 25; opposes removal of seat of
Government, 46, 47; on suspending intercourse with St. Domingo,
349; on the bill to prevent the abuse of the privileges of
foreign ministers, 364; on the bill for the relief of the
ex-Bashaw of Tripoli, 372; on order of proceedings in the case
of John Smith, 554; on the expulsion of Senator John Smith,
573; on amendment to the constitution relative to the removal
of the Federal Judges, 607.
_Address of Senate and House_, in answer to President’s
Messages.--_See Index_, vols. 1 and 2.
_Admirals in the Navy._--_See Index_, vol. 2.
_Admissions on the Floor of the Senate_, considered, 39.
_African Slavery_, petition of Thomas Morris relative to, 166.
_See Index_, vols. 1 and 2.
_African Slaves._--_See Index_, vols. 1 and 2.
ALEXANDER, EVAN, Representative from North Carolina, 413, 613.
ALEXANDER, NATHANIEL, Representative from North Carolina, 50,
297.
_Algerine War._--_See Index_, vol. 1.
_Alien and Sedition Laws._--_See Index_, vol. 2, _Seditious
Practices and Defensive Measures_.
_Allegiance, Foreign._--_See Index_, vol. 1.
ALSTON, WILLIS, jr., Representative from North Carolina, 50,
285, 377, 493, 613; on the postponement of the bill to tax
imported slaves, 141; on laying a duty on imported slaves,
387; on the payment of witnesses on the trial of Chase, 410;
on importations from Great Britain, 464; on a plurality of
offices in the same person, 468; on conference with the Senate
relative to a repeal of the duties on salt, 482, 484; on the
appropriation to build gunboats, 518; on securing the privilege
of the habeas corpus, 533; on British aggressions, 617; on
inquiring into the conduct of General Wilkinson, 645. _See
Index_, vol. 2.
ALSTON, LEMUEL J., jr., Representative from South Carolina, 613.
_Amendment to the Constitution._--Proposed in the Senate,
6; necessity of designating the persons severally, whom the
people should wish to hold the offices of President and Vice
President, 6; strongly recommended by State Legislatures, 6;
_note_, 6; are three readings of a resolution required by
the rules of the Senate? 6; opinions of Senators asked, 7;
resolutions requiring the joint action of both Houses required
to take the same course as bills, 7; this resolution proposes
an alteration of the supreme law of the land, 7; amendments
offered to the form and substance of the resolution, requiring
a majority of votes of electors necessary to a choice of
Vice President, and when wanting, referring his election to
the Senate, 7; amendment proposed, that no person serve more
than eight years, or more than four in any period of eight
years, 7; moved to refer to a select committee, 7; subject too
important to be hurried, 7; the business should be immediately
proceeded with, 7; amendments carried and resolution referred,
7; committee report, 7; moved to strike out all relating to the
appointment of Vice President, 7; object of the mover to put
off the main question, 8; custom of some to arraign motives
instead of meeting arguments, 8; charge of arraigning motives
totally unfounded, 8; if this motion is considered it may
jeopard the amendment for discrimination, as two-thirds of the
State Legislatures will be in session in two or three months,
8; postponement moved, 8; lost, 8; report of the committee
further considered, 21; question of order raised relative to
a two-thirds vote, 21; motion to strike out all relating to
the Vice President, lost, 21; various amendments adopted, 21;
discussion on limiting the choice for President to natural-born
citizens, 21; discussion on limiting the number from which
the House shall choose a President, to three, 22; a point of
importance to the small States, 22; the small States have no
reason for any apprehension, 22; the number five desirable,
22; design of the constitution to secure a competition to the
aspirant for the office, 23; this general amendment of the
constitution unnecessary, 23; present mode may be the source
of great good, 23; amendment read, 23; the Vice President
should be chosen by the same ratio of numbers as the President,
23; he may by some casualty become President, 23; adopt the
designating principle without some precautions, and you lose
the assurance that the Vice President will be the second man
in the nation, 24; if we designate any, then designate both
President and Vice President, and on equal terms, 24; the
number three is large enough, if the candidates are designated,
24; is not the constitution susceptible of correction under
experience? 24; reason for adopting the number three instead
of five, 25; this is really a question between great and small
States, 25; in the old Congress the States were all equal, 25;
the amendment calculated to produce more good than evil, 25;
by reducing the number do you not attack the principles of
the federative compact? 26; object of the amendment to make
the election more certain by the people, by leaving it to
them to designate the persons they preferred for each office,
26; the jealousy of States is nothing but the leaven of the
old Congress, 26; why is no regard paid to the experience of
the last election? 27; the most effectual mode to keep the
selection out of the House is to fix it on the number three,
27; three conforms more to the spirit of the constitution than
five, 27; the number three adopted, 27; reasons for opposing
this amendment of the constitution, 27; the constitution bears
marks of having been issued under the influence of State
classifications, 27; effect of this amendment when two rival
parties are arrayed against each other, 28; what inconvenience
is there in the present mode? 28; the experiment has worked
well, 28; importance of the Vice Presidency, 28; operation of
the designating principle examined, 29; how amendments must
be made, 29; this amendment affects the relative interest
and importance of the smaller States, 30; it has a tendency
to render the Vice Presidency less respectable, 30; the
resolution contains principles which have a manifest tendency
to deprive the small States of an important right, secured
to them by a solemn and constitutional compact, and to vest
an overwhelming power in the great States, 30; imperfections
of man, 30; attempt to excite the attention, the vigilance,
and even the jealousy of the small States, against the large,
31; constitution examined to place in its proper light the
operation and effects of the resolution, 31; Madison on the
mode of electing President, 32; what is the direct object
of the proposed alteration in the choice of President, 32;
intention of the plan adopted by the constitution for choosing
a President, 33; the opposition to this discriminating
amendment is condensed into a single stratagem, namely, an
effort to excite the passion of jealousy in various forms,
33; two principles sustain the constitution--a majority of
the people, and a majority of States, 34; these principles
considered, 34; view under which the amendment should be
considered, 34; is the amendment calculated or not to cause
the popular principle to operate perfectly, and to prevent the
abuse of an election by a minority, 35; does the amendment
afford cause of jealousy to the smaller States, 35; instance
of a government, the substance of the constitution of which
is destroyed, but the form remains unaltered, 35; solution of
this effect, 35; the design of the amendment is to bestow on
the majority a power to elect a Vice President, 36; question
carried, 37; not decided fairly, 37; two-thirds of the whole
number elected are required, 37; amendment as adopted, 37;
further amendment considered, 38; lost, 38.
_In the House_, report of the Committee considered, 58; evils
relative to the election of President and Vice President were
anticipated at the time of the adoption of the constitution,
58; amendment moved to the resolution, 58; true spirit
and principle of the constitution, through the organs of
government, to express public opinion, 58; the amendment
moved proposes to elect the President by the House, not by
States, 58; amendment misunderstood, 59; if any defect in the
constitution, that defect perhaps consists in a departure from
the plain and simple modes of an immediate election by the
people, 59; a legislative election should be restrained to the
smallest number, 59; the number should be five, instead of
three, 59; object of the amendment should be to prevent persons
voted for as Vice President from becoming President, 60; five
will allow to the smaller States a larger scope for choice,
60; two comes nearer to the principle of the constitution than
five, 60.
_Relative to the removal of Federal Judges_, resolutions
offered, 341; referred to Committee of the Whole, 341;
postponed to next session, 341; moved in the House, 413;
postponement moved, 414; reasons against postponement, 414;
an important means of bringing the administration back to
the principles on which it came into power, 414; _note_,
414; history of corruptions, 415; causes of the delay in the
business of the House, 415; a subject of last importance to
the peace and happiness of the United States, 415; part of the
constitution relating to the power of impeachment a nullity,
415; _note_, 415; reasons for postponement, 416; reasons
against postponement, 416; postponement indefinite lost, 417.
_Various amendments suggested._--State of the country at the
adoption of the constitution, 607; Federalist and Republican,
607; one of the errors of the constitution, 607; modes of
correction, 607; proposed to reduce the term of representatives
to one year, 608; term of senators to three years, 608;
President to be chosen by lot from the Senate, for one year,
609; objections considered, 609; advantages considered, 610.
_See_ _Index_, vol. 1.
AMY DARDIN’s _claim_, report on considered in the House, 82;
report not agreed to, 82; moved to grant the prayer of the
petitioner, 82; carried in committee, 82; amendment moved in
the House, 82; committee instructed to bring in a bill, 82;
motion to take up the bill, 85; move to postpone, in order
ultimately to test the sense of Congress on repealing the
statutes of limitation, 85; motion lost, 85; bill amended,
so as to allow $2,500 for the horse Romulus, 85; the $2,500
negatived, 85; $2,300 adopted, 85; bill ordered to third
reading, 85; bill lost, 85; petition of referred, 302; bill
reported and read twice, 340. _See_ _Index_, vols. 1 and 2.
ANDERSON, ISAAC, Representative from Pennsylvania, 50, 285,
377, 493.
ANDERSON, JOSEPH, Senator from Tennessee, 3, 165, 346, 547;
favors temporary removal of seat of government, 46; further
remarks, 47; elected President _pro tem._ of Senate, 169; on
British aggressions on our commerce, 356; on expelling Senator
John Smith, 598. _See_ _Index_, vol. 2.
_Appropriations, Naval_, bill making for the year 1806
considered in the House, 474; moved to strike out the words
“and other contingent expenses,” 474; _note_, 474; what objects
intended to be provided for under this term, 474; this bill
mere form, the money might be appropriated in the lump, 474;
expenditure the same, 474; motion to strike out, lost, 474;
annual expenditures for the navy, 475; further debate, 475;
bill ordered to third reading, 476; moved to recommit, 478;
passed, 478; importance of circumscribing contingencies, 478;
time to check this loose proceeding, 478; bill reported, 478.
_Appropriations._--_See_ _Index_, vols. 1 and 2.
ARCHER, JOHN, Representative from Maryland, 52, 285, 378. _See_
_Index_, vol. 2.
_Arms, exportation of_, amendments to bill relative to, 380.
ARMSTRONG, JOHN, Senator from New York, 38, 44.
_Army._--_See_ _Index_, vols. 1 and 2.
_Army Uniforms_, petition of Andrew Jackson relative to, 167.
B
BACON, EZEKIEL, Representative from Massachusetts, 614; on
inquiry into the conduct of Gen. Wilkinson, 648.
BAILEY, THEODORE, Senator from New York, 3; resigns his seat in
the Senate, 39. _See_ _Index_, vols. 1 and 2.
BALDWIN, ABRAHAM, Senator from Georgia, 3, 163, 345, 485. _See_
_Index_, vols. 1 and 2.
BALDWIN, SIMEON, Representative from Connecticut, 79, 286.
_Bank of the United States_, memorial of stockholders, 611.
_Bank of the United States._--_See_ _Index_, vol. 1.
_Bankrupt Act_, vote on the bill to repeal in Senate, 38; bill
to repeal, as passed by the Senate, 38.
_In House._--Resolution to repeal considered, 79; no
remonstrance hostile to it has been received, 79; law expires
by its own limitation in a few years, 79; principle unjust, as
it favors one class of citizens at the expense of all others,
79; the preferable system was that of the States extending
relief to insolvents, 79; its partial operation has a most
mischievous influence on the morals of the mercantile world,
79; the principle inequitable as regards debtor and creditor,
79; while justice and humanity dictates the liberation of
the body of the debtor, justice forbids the exoneration of
property from going to satisfy debts, 80; the principle of the
law, however good in theory, can never be carried into effect,
80; the expenses are an objection to the system, 80; _note_,
80; the honest, though unfortunate, debtor has nothing to fear
from his creditors, 80; the public silence indicates neither
hostility nor opposition, 80; true policy to suffer the act
to expire by its own limitation, 81; general sentiment of the
nation concurs in the propriety of affording some relief to
the distresses of the commercial world, 81; if the exoneration
of property from just debts is a violation of justice, this
does not hold in commercial concerns, 81; credit is the
life of trade, 81; the principles of a bankrupt law do not
operate in favor of the debtor, 81; such a system multiplies
checks against fraud, 81; one object of the constitution in
granting the power, was the establishment of credit upon broad
principles of justice, 81; report of committee agreed to, 82;
amendment extending the period of removal moved, 82; amendment
directing the completion of all proceedings under commissions
taken out previous to repeal, 82.
_Bankruptcy._--_See_ _Index_, vol. 2.
BARBARY POWERS, protection of commerce against, _see_ _Duties
on Imports_.
BARD, DAVID, Representative from Pennsylvania, 50, 285, 377,
493, 612; on a tax on imported slaves, 96; on the importation
of slaves, 130. _See_ _Index_, vol. 2.
BARKER, JOSIAH, Representative from Massachusetts, 377, 493,
612.
BARNEY, JOSHUA, report on petition of, 615.
BASSETT, BURWELL, Representative from Virginia, 377, 493, 613;
to prohibit members of Congress from making contracts with the
Government, 659.
BASSETT, JOHN, his testimony for the defence on the trial of
Judge Chase, 210.
BAYARD, JAMES A., Senator from Delaware, 165, 353, 487, 552; on
British aggressions on our commerce, 357. _See_ _Index_, vol. 2.
BEAUMARCHAIS, claim of petition relative to, 473; claim of
report on, 542.
BECKLEY, JOHN, chosen Clerk of the House, 51, 378. _See_
_Index_, vols. 1 and 2.
BEDINGER, GEORGE M., Representative from Kentucky, 50, 285,
378, 493; on a tax on imported slaves, 130, 132, 140.
BEDFORD, GUNNING, his testimony for the defence on the trial of
Judge Chase, 225.
BENTLEY, WM., appointed Chaplain by the House, 164.
BETTON, SILAS, Representative from New Hampshire, 50, 285, 377,
493.
BIBB, WILLIAM W., Representative from Georgia, 503, 613, on
home manufactures, 709.
BIDWELL, BARNABAS, Representative from Massachusetts, 377, 493;
offers a resolution to present a sword to Gen. Eaton, 380,
381; on the presentation of a sword to Gen. Eaton, 382; on
discharging committee from consideration of invasion of neutral
rights, 394; on a plurality of offices in the same person, 471;
on the importation of slaves, 494, 495, 497; on the suspension
of the Habeas Corpus, 510; on securing the privilege of the
Habeas Corpus, 525, 535.
_Bills_, in Senate, to authorize President to take possession
of territory ceded by France, 6; second reading of do., 7;
ordered to third reading, 8; passed, 8.
_Bills, Money._--_See_ _Index_, vol. 1.
BISHOP, PHANUEL, Representative from Massachusetts, 50, 287,
377, 497. _See_ _Index_, vol. 2.
BLACKLEDGE, WILLIAM, Representative from North Carolina, 50,
285, 613.
BLAKE, JOHN, jr., Representative from New York, 377, 493, 612.
BLOUNT, THOMAS, Representative from North Carolina, 378,
613; on post roads, 542; reports relative to the attack on
the Chesapeake, 616; further report relative to British
aggressions, 621; on building gunboats, 626, 628. _See_
_Index_, vols. 1 and 2.
BONAPARTE’s proclamation to the inhabitants of St. Domingo, 362.
BONDE, THOMAS, Representative from Pennsylvania. _See_ _Index_,
vol. 2.
_Boston, Mass._, memorial of inhabitants relative to
aggressions on commerce, 399.
BOYD, ADAM, Representative from New Jersey, 50, 285, 676; on
the retrocession of the District of Columbia, 308; on the
Georgia claims, 324.
BOYD, JAMES P., his testimony for the defence on the trial of
Judge Chase, 228.
BOYLE, JOHN, Representative from Kentucky, 50, 285, 380,
493; on the resolution relative to public roads, 84; on the
government of Louisiana, 148; reports relative to canal at the
Rapids of the Ohio, 465.
BRADLEY, STEPHEN E., Senator from Vermont, 3, 163, 345, 485,
547; offers amendments to the resolution relative to amendments
of the constitution, 7; moves to strike out part of the
proposed amendment to the constitution, 23; further remarks,
24. _See_ _Index_, vols. 1 and 2.
_Breach of Privilege._--_See_ _Index_, vol. 2.
BRECKENRIDGE, JOHN, Senator from Kentucky, 3, 165; gives notice
for leave to bring in a bill to authorize President to take
possession of territories ceded by France, 6; asks leave, 6;
reports on amendments of the House to Senate’s bill authorizing
the President to take possession of Louisiana, 8; on the merits
of the Louisiana treaty, 16. _See_ _Index_, vol. 2.
_Bribery._--_See_ _Index_, vol. 1.
BRICE, NICHOLAS, his testimony for the defence on the trial of
Judge Chase, 228.
_Bridge over the Potomac_, bill postponed, 374. _See_ _Potomac
Bridge_.
_British Aggressions on our Commerce_, message from the
President relative to, in Senate, 353; report of the committee
on the message considered, 355; first resolution passed, 355.
Second resolution relative to a demand for the restoration
of property, &c., and to make arrangements relative to the
impressment of seamen considered, 355; impropriety of agreeing
to the resolution arising from all the circumstances of the
case, 356; this resolution predicated on the principle of
the first, which passed unanimously, 356; language of the
resolution not too strong, 356; the principle of the resolution
considered, 357; the resolution shelters the Executive from
the responsibility which ought to attach to its measures, 357;
it demonstrates the union of the different branches of the
Government on the subject, 357; the resolution will bear the
character of advice to the President, 357; we should reflect
upon this step, 357; object of the resolution, 358; motion
to recommit to a special committee, 358; objections to the
resolution in its present shape, 358; motion to recommit lost,
358; it becomes the Senate to take stronger ground and adopt
vigorous measures before requesting the President to negotiate,
359; negotiation not exhausted, 359; two objections made to
the resolution, a censure upon the President, and a sacrifice
of the honor and interests of the United States, 359; these
considered, 359; resolution carried, 359.
Third resolution considered, 369; the first resolution is a
declaration of our neutral rights, the second requests the
President to send a special Minister to England, &c., the
third proposes to prohibit the importation of certain British
goods, unless redress is obtained, 369; it is designed to aid
negotiation, 369; Great Britain prohibits the importation of
our goods, and how can she regard this as a war measure? 369.
_In the House._--Resolution to call on the President for a
copy of his Proclamation interdicting our ports and harbors to
British armed vessels, 617; no necessity for the measure, 617;
it has been published in all the newspapers, 617; the former
practice, 617; this opposition to the motion unaccountable,
618; not contained in the report of the committee because it
was believed to be sufficiently official in the newspapers,
618; resolution adopted, 619; copy of Proclamation, 619; report
of committee on the report, 621.
_British Treaty_, deficiency in the appropriation to carry out
the seventh article, 287. _See_ _Index_, vol. 1.
BROOM, JAMES M., Representative from Delaware, 383, 493; on
laying a tax on imported slaves, 390; on securing the privilege
of the Habeas Corpus, 520, 526.
BROWN, JOHN, Senator from Kentucky, 3, 165; elected President
_pro tem._ of Senate, 3; on rules of the Senate relative to
separate readings of resolutions, 7; submits to Senate a
question of order, 21; elected President _pro tem._ of Senate,
41. _See_ _Index_, vols. 1 and 2.
BROWN, OBADIAH B., elected chaplain of the House, 614.
BROWN, ROBERT, Representative from Pennsylvania, 50, 286, 377,
493, 612. _See_ _Index_, vol. 2.
BRYAN, JOSEPH, Representative from Georgia, 79, 286, 379.
BURR, AARON, as Vice President presides in Senate, 38; Vice
President presides over the Senate, 163; franking privilege
denied, 168; farewell address to the Senate, 169; _note_, 170.
_See_ _Index_, vols. 1 and 2.
BURWELL, WILLIAM A., Representative from Virginia, 493, 613;
on rejection of the bill from the Senate suspending the Habeas
Corpus, 504; on securing the privilege of the Habeas Corpus,
522; on British aggressions, 618; on inquiry into the conduct
of General Wilkinson, 646; on naturalization laws, 659; on
suspension of the act of non-importation, 709.
BUTLER, PIERCE, Senator from South Carolina, 6; reports on
amendment to the constitution, 7; offers amendment to limit
eligibility to Presidency, 7; on the eligibility only of
natives to the Presidency, 21; resigns, 165. _See_ _Index_,
vol. 1.
BUTLER, WILLIAM, Representative from South Carolina, 51, 207,
378, 493, 613.
C
CALHOUN, JOSEPH, Representative from South Carolina, 613.
CAMPBELL, GEORGE W., Representative from Tennessee, 51, 285,
378, 613; on the amendment to the constitution relative to the
election of President, 58, 60; on postage on newspapers, 78; on
the resolution relative to public roads, 83; on the resolution
to inquire into the official conduct of Judge Chase, 94; on the
government of Louisiana, 152; continues the argument for the
prosecution on the trial of Judge Chase, 232; on improving the
navigation of the Potomac, 291; on the establishment of post
roads, 338; on importations from Great Britain, 451; on the
appropriation to build gunboats, 517; on securing the privilege
of the Habeas Corpus, 531; on fortifications and gunboats, 638;
on removal of the federal judges, 675; on suspension of the
embargo act, 677; on suspension of the act, 693.
CAMPBELL, JOHN, Representative from Maryland, 50, 286, 377,
493, 612. _See_ _Index_, vol. 2.
CARLTON, PETER, Representative from New Hampshire, 612.
CARONDELET, his letter relative to money for General Wilkinson,
642.
CASEY, LEVI, Representative from South Carolina, 51, 287, 378,
494; decease announced, 491, 515.
_Census of the Union._--_See_ _Index_, vol. 1.
CHAMBERLAIN, WILLIAM, Representative from Vermont, 50, 285.
CHAMPION, EPAPHRODITUS, Representative from Connecticut, 612.
CHANDLER, JOHN, Representative from Massachusetts, 377, 493,
612; on importations from Great Britain, 462; on building
gunboats, 627; on inquiry into the conduct of General
Wilkinson, 645.
_Charitable objects._--_See_ _Index_, vol. 1.
_Charlestown, Virginia_, petition of inhabitants for a port of
entry, 407; report of committee of commerce, 409; facts in the
case, 409; report agreed to, 409.
CHASE, JUDGE, _official conduct of_ considered in the House,
88; no people have such a sense of the importance of preserving
unpolluted the fountains of justice as citizens of the United
States, 88; hence the independence of the judges under the
constitution, 88; resolution offered to appoint a committee to
inquire into the official conduct of Samuel Chase, and whether
he has so acted in his judicial capacity as to require the
interposition of the constitutional power of the House, 89;
called upon to vote an inquiry into the conduct of a judge
without any facts being adduced to show that such an inquiry
should be made, 89; to adopt the resolution in its present
form would be a vote of censure on the Judge, 89; parties
aggrieved, or members cognizant of the facts, should bring
up the measure, 89; statement of facts made at last session,
89; occasion of that statement, 90; a statement of the facts
occurring in Pennsylvania, 90; this is the first instance
in which a motion to appoint a committee of inquiry into
the official conduct of a public officer has been opposed,
90; this House the constitutional guardians of the morality
of the judiciary, 90; character of the Judge involved by
this discussion, 90; the conviction of any one member of
the propriety of this measure cannot warrant the House in
taking this step, 90; the statement of facts is not founded
on personal knowledge, 91; hearsay should never be the ground
for instituting an inquiry, 91; action should be delayed until
such facts are disclosed as will justify the step, 91; the
propriety of the inquiry cannot be seen without evidence, and
what is the object of the inquiry but to obtain evidence, 91;
if the inquiry cannot be had without the evidence, both must
be dropped, 91; no impropriety in giving the case the same
direction as all other business of the House, 91; it does not
appear correct to call the character of a public officer in
question, unless some necessity should first appear, 92; no
precedents adduced which apply to this case, 92; case of Judge
Pickering, 92; the course proposed inverts the natural order of
things, being an inquiry for and not out of facts, 92; facts
stated not sufficient for impeachment, 93; the grounds should
be stated in the form of a resolution, and such resolution be
referred to a committee for investigation, 93; we have the
same right to impeach the President, yet it would be improper
without facts, 93; question of adjournment moved and lost,
93; postponement desired, to afford time for reflection, 94;
we should proceed cautiously in this matter, 94; before the
vote for an inquiry there should be probable grounds that
facts exist to authorize such a procedure, 94; improper to go
into such an inquiry before specific charges are laid before
the House, 94; reasons for proceeding in what is termed so
precipitate a manner, 95; all objections are applicable to a
motion for impeachment only, 95; committee rose, 95; amendment
moved to insert also the name of Judge Richard Peters in the
resolution, 96; only a committee is asked to receive evidence,
and determine whether it affords grounds for an impeachment,
96; no way more favorable to the person implicated, 96; on
the request of a member for a committee of inquiry, that
measure ought to be adopted, 96; precedents are not necessary;
reason and common sense are all that is necessary to guide to
a decision, 97; British annals are full, 97; case of the Earl
of Strafford, 97; it is notorious that Fries was tried for his
life without being heard, 97; Peters equally guilty with Judge
Chase--amendment carried, 98; let the facts be laid before the
House, 98; otherwise we shall legislate on the opinion of a
member, 98; men of talents will not take seats on the bench,
if their character is liable to be scrutinized without any
facts being previously adduced, 98; any member may procure an
investigating committee if this resolution pass, 98; under
the circumstances, the measure is improper in every point
of view, 99; arguments of the opposition turn on the ground
of expediency and precedent, 99; its expediency argued, 99;
precedents considered, 99; resolution objected to because of
the indelicacy of implicating the character of a judge, 100;
all independence has its limits, 101; is not this House under a
solemn oath for the faithful discharge of this and every other
duty, 101; other objections considered, 102; reasons for every
member to vote for the resolution, 102; this House is the grand
inquest of the nation, whose duty it is to inquire, on a proper
representation, into the conduct of every officer, 103; it is
the duty of a grand jury to inquire who is guilty, 103; in
England common report has been considered sufficient authority
for similar inquiries, 103; not necessary that the House should
be acquainted with any facts to make this inquiry, 103; the
accused should have an opportunity to prove to the world that
his character has been assailed without cause, 104; what will a
committee do, 104; it operates in the nature of an inquisition,
104; let us first ascertain if there is sufficient grounds for
an impeachment, 104; when did this case occur, 104; why has it
rested so long, 104; it is not of the serious nature contended,
104; precedents do not warrant this form of proceeding, 105; so
important is this matter that the conduct of any officer should
be inquired into on the demand of a member, 105; the offence
charged is such as will warrant impeachment, 105; is the
present proceeding conformable to principle? 105; a charge has
been made against Judge Chase, 107; precedents examined, 107; a
more anti-republican resolution not seen, 108; unprecedented,
unparliamentary, 108; information on the matter extremely
contradictory, 109; precedents examined, 109; resemblance to
a grand inquest, 110; proceedings in North Carolina, 110;
difference between the friends and opponents of the resolution,
111; form of a resolution offered, 111; objections and personal
allusions examined and answered, 112; is the denial to the
prisoner and the jury of the right of having the point of law
discussed nothing? 113; is treason better defined than murder?
113; should an incipient inquiry be confined by the same rules
which govern a criminal trial? 113; cases of precedent offered,
113; the House is vested with the sole power of impeachment;
how it is to be exercised must depend on its discretion, 114;
what does the resolution demand of us? 114; if gentlemen are
in possession of facts, let them declare them, 114; let the
instances of malfeasance of these judges be specified, 115;
what public character will be safe, if this resolution is
adopted on the request of a single member? 115; observations
of the opponents are incorrect; the resolution is to inquire,
not to impeach, 115; the duty of the committee will be to
inquire into the official conduct of a certain public officer,
115; if there is no ground for impeachment, the character of
the officer should be vindicated, 115; no justification in the
constitution on which to ground a refusal to inquire, 115;
various objections considered, 116; precedents for the judgment
in Fries’ case, 116; no facts have been shown, 116; the inquiry
is an act of justice due to the people of the United States
on the one hand, and to the officers on the other, 117; all
the difference possible between an inquiry and an impeachment,
117; analogy between the functions of this House and a Grand
Jury correct, 117; the reputation of the Government demands
the inquiry, 117; it is not the examination, but the result of
the examination, that attaches merit or demerit to a public
officer, 118; a full inquiry into the conduct of public
officers should be cherished with great care, 118; in this case
a specific charge has been made, 118; authorities from foreign
nations adduced, 118; the case of the Western Insurrection,
119; the precedents adduced, examined, 120; committee of
investigation of the last Congress, 120; this resolution points
to two particular officers as objects of suspicion, 121; if
charges were specified, a member, on moving the resolution,
might demand an inquiry, 121; others have their convictions as
well as the mover of the resolution, 121; common fame no ground
on which to support such a resolution, 122; on the broad basis
of universal right, the resolution is condemned, 122; reason
why the charge is of a serious nature, 123; amendment moved,
123; moved to strike out amendment and insert other words, 124;
motion to strike out agreed to, 124; motion to insert carried,
124; question on agreeing to the amendment as amended, lost,
124; original resolution carried, 124; committee appointed,
125; report of the committee, 161; ordered printed for the use
of the members, 161; report, 174.
_Trial of Judge Chase._--_Note_, 173; report of committee in
favor of impeachment adopted, 174; committee appointed to
impeach Judge Chase at the bar of the Senate, 174; committee
to prepare articles of impeachment, 174; do. considered, 175;
managers to conduct the impeachment appointed, 175; proceedings
in the Senate, 175; rules of proceeding adopted by the Senate,
175; preliminary proceedings, 177, 178; answer of Judge Chase,
178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189,
190, 191; replication by the House of Representatives, 191;
names of the witnesses, 191, 192.
Impeachment opened, 192; it is for a daring inroad upon the
criminal jurisprudence of the country, by delivering an
opinion, at a time and in a manner before unheard of and
unknown, that the respondent is impeached, 192; the soundness
of the opinion is offered as a defence, 193; this was a
criminal trial for a capital offence, 193; answer of respondent
on this point examined, 193, 194; the second article is
the case of Basset, whose objection to serve on a jury was
overruled by the judge, 194; the same exception to a juryman,
which would furnish ground for a new trial, ought to be a cause
of setting aside such juror, if it be taken previous to his
being sworn 195; third, the rejection of the evidence of John
Taylor, 195; is it not an unheard-of practice, in a criminal
prosecution, to declare testimony inadmissible because it is
not expected to go to the entire exculpation of the prisoner?
195; fourth, requiring the questions intended to be put to the
witness to be reduced to writing, and submitted to the Court,
in the first instance, 196; refusal to postpone the trial,
although an affidavit was regularly filed, stating the absence
of material witnesses, 196; fifth, arresting and committing
the defendant contrary to law, 196; other articles stated,
197; testimony of William Lewis, 198; testimony of Alexander
J. Dallas, 199; testimony of Henry Tilghman, 201; testimony of
Wm. Rawle, 202; testimony of George Hay, 204; testimony of John
Taylor, 207; testimony of Philip N. Nicholas, 207; testimony of
John T. Mason, 209; testimony of John Heath, 210; testimony of
James Triplett, 210; testimony of John Basset, 210; testimony
of George Read, 211; testimony of James Lea, 212; testimony
of John Montgomery, 213; testimony of Samuel H. Smith, 214;
testimony of John Stephen, 214; documents offered in evidence,
215.
Opening for the defence, 215; statement of the points to which
testimony will be directed, 215; first, that the opinion was
not only legal, but had been twice expressly decided, and once
admitted, in the same court, and had before that trial been
laid down as a general principle of law, 215; second, that the
nature of Basset’s application has been wholly misunderstood by
the witnesses on the part of the prosecution, 216; other points
stated, 216; fifth and sixth, that by a rule solemnly made by
the Supreme Court, that they never considered the State laws
as regulating _process_, &c., 216; other points stated, 216;
testimony of Samuel Ewing, 217; testimony of Edward J. Coale,
217; testimony of William Meredith, 217; testimony of Luther
Martin, 218; testimony of James Winchester, 219; testimony of
William Marshall, 219; testimony of David M. Randolph, 221;
testimony of John Marshall, 222; testimony of Edmund J. Lee,
224; testimony of Robert Gamble, 224; testimony of Philip
Gooch, 224; testimony of Gunning Bedford, 225; testimony of
Nicholas Vandyke, 226; testimony of Archibald Hamilton, 226;
testimony of Samuel Moore, 226; testimony of William H. Winder,
227; testimony of James Winchester, 227; testimony of Walter
Dorsey, 227; testimony of John Purviance, 228; testimony of
Nicholas Brice, 228; testimony of James P. Boyd, 228; testimony
of William McMechin, 228; testimony of William S. Govane,
228; testimony of William Cranch, 229; argument begun by Mr.
Early, on the part of the Managers, 229; remarks upon the
first article of the impeachment, 229, 230; do. on the second,
third, and fourth articles of the impeachment, 231; remarks on
the sixth and seventh articles of the impeachment, 232; do.
on the eighth article, 232; argument continued for the House,
by Mr. Campbell, 232; provisions of the constitution relative
to impeachments--their precise object and extent, so far as
relates to the present case, 233; the several charges founded
on the trial of Callender, stated in the second, third, and
fourth articles of impeachment examined, 234; disqualification
of a juror, 234; argument continued by Mr. Cloud, on the fifth
and sixth articles of the impeachment, 236; the practice of the
Federal Courts, 236.
Argument for the defence opened by Mr. Hopkinson, 236; the
first proper object of inquiry is to ascertain, with proper
precision, what acts or offences of a public officer are the
objects of impeachment, 237, 238; first article examined, 240;
second specification of first article examined, 242; argument
for the defence continued by Mr. Key, on the second, third,
and fourth articles of the impeachment, 244, 245, 246, 247,
248; argument for the defence continued by Mr. Lee, on the
fifth article, 248; do. on the sixth article, 249; argument
for the defence continued by Mr. Martin, 250; general review
of the case, 251, 252, 253, 254, 255, 256, 257; argument for
the defence continued by Mr. Harper, 258; political position of
the defendant, 258; general review of the first six articles of
impeachment, and an examination of the law and the facts, under
the seventh and eighth articles, 260.
Reply for the prosecution continued by Mr. Nicholson, 261-262;
to sustain an impeachment it is not necessary to show that
the offences charged are of such a nature as to subject the
party to indictment, 263; words “good behavior,” 263; treason
examined, 264; reply further continued for the prosecution, by
Mr. Rodney, 267, 268, 269, 270, 271, 272, 273; reply for the
prosecution concluded by Mr. Randolph, 274; the doctrine of
impeachment, 274.
Manner of taking the judgment of the Court, 281; opinion of
each Senator taken on each article, 282, 283; acquittal of
Judge Chase, 284.
_Chesapeake Frigate_, attack on, 614; report on, 616.
_Chesapeake and Delaware Canal._--Report of committee on, 418.
CHITTENDEN, MARTIN, Representative from Vermont, 50, 285, 377,
493, 612.
_Church in Georgetown._--Bill to incorporate Presbyterian
society considered in the House, 408; moved to strike out the
section authorizing a lottery for finishing the building, 408;
objected to as authorizing public gambling, 408; ecclesiastical
corporations, object of hatred, 408; no objection to such an
act, 408; no incorporation among Quakers, 408; Quakers think no
money ought to assist them in their passage to heaven--others
think money employed to the best advantage in this way, 408;
in a moral, political and religious view, these acts highly
necessary, 408; such an application never refused in a State,
408; bill passed, 409.
_Circuit Courts in Ohio and Tennessee_, bill relative to, 519.
CLAGGETT, CLIFTON, Representative from New Hampshire, 50, 285.
CLAIBORNE, JOHN, Representative from Virginia, 377, 493.
CLAIBORNE, THOMAS, Representative from Virginia, 50, 285. _See_
_Index_, vols. 1 and 2.
CLARK, CHRISTOPHER, Representative from Virginia, 285, 384;
on improving the navigation of the Potomac, 294, 297; on the
retrocession of the District of Columbia, 310; on the Georgia
Claims, 324; on the importation of slaves, 386; on laying a
tax on imported slaves, 388; on incorporating a church in
Georgetown, 408; on postponing the resolution for amending the
constitution, relative to the removal of Federal judges, 413;
on amendment of the constitution, relative to the removal of
Federal judges, 416; on importations from Great Britain, 442.
CLARK, DANIEL, delegate from Orleans Territory, 493, 640;
refuses information relative to Gen. Wilkinson, 644; his
statement relative to Gen. Wilkinson, 646.
_Classification of the Senators of Ohio_, 38.
CLAXTON, THOMAS, chosen doorkeeper of the House, 378. _See_
_Index_, vol. 1.
CLAY, HENRY, Senator from Kentucky, 487.
CLAY, JOSEPH, Representative from Pennsylvania, 50, 285, 377,
493, 615; on the amendment to the constitution, relative to
the election of President, 59; on the motion to inquire into
the official conduct of Judge Chase, 90; on the increase of
specific duties, 158; offers a resolution to present a sword to
Com. Decatur, 286; on the remission of duties on books, 289; on
the Georgia Claims, 337; offers resolutions of non-intercourse
with Great Britain, 400; on importations from Great Britain,
421; on a plurality of offices in the same person, 472; on
naval appropriations, 478; on repeal of the duty on salt, 481;
on securing the privilege of the Habeas Corpus, 540.
CLAY, MATTHEW, Representative from Virginia, 50, 287, 383, 613;
on organizing the militia of the United States, 659. _See_
_Index_, vol. 2.
CLINTON, DEWITT, Senator from New York, 3; moves amendment to
the constitution, 6; _note_, 6; on rules of Senate, relative to
separate readings of resolutions, 6; denies charge of Dayton,
relative to arraigning motives, 8; in favor of amendment
reported, relative to Vice President, 8; resigns his seat in
the Senate, 20.
Clinton, George, elected Vice President, 168; presides in
Senate as Vice President, 349, 485, 547. _See_ _Index_, vols. 1
and 2.
CLINTON, GEORGE, jun., Representative from New York, 340, 494,
676; presents the petition of the Manhattan Co., 497.
CLOPTON, JOHN, Representative from Virginia, 51, 286, 377, 493,
613; on the amendment to the constitution, relative to the
election of President, 59. _See_ _Index_, vols. 1 and 2.
COALE, EDWARD J., his testimony for the defence, on the trial
of Judge Chase, 217.
_Coast Survey_, resolution relative to, 494.
COBB, HOWELL, Representative from Georgia, 613.
COCKE, WILLIAM, Senator from Tennessee, 3, 165; opposes removal
of seat of government, 46. _See_ _Index_, vols. 1 and 2.
_Cod Fisheries._--_See_ _Index_, vols. 1. and 2.
_Commerce of United States._--_See_ _Index_, vols. 1 and 2.
_Committee of Senate_ to wait on President, 4; on resolutions
relative to amendments of the constitution, 7; on act relative
to the importation of slaves, 39; of House to inquire into
the official conduct of Judges Chase and Peters, 174; report
of do., 174; to prepare articles of impeachment against Judge
Chase, 174; to conduct the trial, 175; of the House, second
session, eighth Congress, 285.
_Compensation of President, Vice President, and other
Officers._--_See_ _Index_, vols. 1 and 2.
CONDIT, JOHN, Senator from New Jersey, 3, 20, 163, 345, 485,
547. _See_ _Index_, vol. 2.
_Congress._--First session of eighth, Oct. 17, 1803, 3; extra
session, Oct. 17, 1803, 3; second session of eighth commenced,
163; adjourned, 343; third session of eighth adjourns, 344;
first session of ninth commences, 345; adjournment of the
first session of ninth, 484; commencement of second session
of ninth, 485; adjournment of second session, ninth Congress,
546; commencement of first session of tenth Congress, 547;
adjournment of first session, tenth Congress, 710.
_Connecticut_, vote for President, 168.
CONRAD, FREDERICK, Representative from Pennsylvania, 50, 285,
377, 493; on the application of the Society of Harmony, 404; on
naval appropriations, 478.
_Contested Election_ of Thomas Lewis, report on, 143; in
Maryland, report on, 615; _note_, 615.
_Contested Elections._--_See_ _Index_, vol. 1.
_Contingent Fund_, message relative to, 39.
_Contingent Expenses_, resolution relative to, 388. _See_
_Index_, vol. 2.
_Contracts, Government_, _note_, 337; resolution relative to,
659.
COOK, ORCHARD, Representative from Massachusetts, 377, 493,
612; on fortifications and gunboats, 628, 630.
COVINGTON, LEONARD, Representative from Maryland, 377, 494.
CRANCH, WILLIAM, his testimony for the defence on the trial of
Judge Chase, 229.
CRAWFORD, WILLIAM H., Senator from Georgia, 551; on expelling
Senator John Smith, 604.
CROWNINSHIELD, JACOB, Representative from Massachusetts, 50,
285, 377, 493, 615; in favor of the resolution to carry the
Louisiana treaty into effect, 67; on the protection of seamen,
314; on discharging the committee from consideration of
invasion of neutral rights, 394; on the importation of slaves,
401; on the West India trade, 403; on making Charlestown,
Virginia, a port of entry, 409; on importations from Great
Britain, 422; on reference of the petition of the Manhattan
company, 497; on British aggressions, 617, 618; on building
gunboats, 626, 629, 634; decease of, 694.
CULPEPPER, JOHN, Representative from North Carolina, 613.
_Cumberland Road_, bill relative to, 384.
CUSTIS, GEORGE WASHINGTON PARKE, letter relative to
retrocession of the District of Columbia, 297.
CUTLER, MANASSEH, Representative from Massachusetts, 50, 286.
_See_ _Index_, vol. 2.
CUTTS, RICHARD, Representative from Massachusetts, 50, 287,
377, 493, 612. _See_ _Index_, vol. 2.
D
DALLAS, ALEXANDER J., testimony for the prosecution on the
trial of Judge Chase, 199.
DANA, SAMUEL W., Representative from Connecticut, 50, 286,
377, 493, 612; on the bill authorizing the President to take
possession of the Louisiana Territory, 74; on the resolution
to appoint a committee to inquire into the official conduct of
Judge Chase, 120; on protection against the Barbary Powers,
161; on the resolution relative to the Georgia claims, 315,
316; on laying a duty on imported slaves, 387, 388, 389; on
naval appropriations, 474, 478; on repeal of the duty on
salt, 481; on the coast survey, 494; on the suspension of the
Habeas Corpus, 515; on revolutionary pensions, 614; on British
aggressions, 618. _See_ _Index_, vol. 2.
DARBY, EZRA, Representative from New Jersey, 377, 493, 612;
deceased, 675.
DAVENPORT, JOHN, Representative from Connecticut, 50, 285, 377,
493, 612. _See_ _Index_, vol. 2.
DAWSON, JOHN, Representative from Virginia, 50, 285, 377, 493,
613; on the amendment to the constitution relative to the
election of President, 58, 59; moves to take up resolution
relative to the retrocession of the District of Columbia, 161;
on improving the navigation of the Potomac, 292, 301; on the
bill to authorize the court of the District of Columbia to
grant divorces, 313; on laying a tax on imported slaves, 391.
_See_ _Index_, vol. 2.
DAYTON, JONATHAN, Senator from New Jersey, 3, 164; moves to
refer resolution relative to amendments of the constitution
to a select committee, 7; opposes amendment of constitution
reported relative to the Vice President, 7; charges Clinton
with the habit of arraigning motives, 8; on the acquisition of
Louisiana, 13; on choice of the House from the three highest
candidates, 22; on amendment to the constitution relative to
the election of President, 25; offers public buildings at
Trenton in case of a removal of the seat of Government, 46.
_See_ _Index_, vols. 1 and 2.
DEANE, JOSIAH, Representative from Massachusetts, 612.
DEARBORN, H., letter with documents relative to the conduct of
Gen. Wilkinson, 663. _See_ _Index_, vols. 1 and 2.
_Debates, reporting of._--_See_ _Index_, vol. 2.
DECATUR, STEPHEN, resolution of thanks to, 165.
_Defensive measures under John Adams’ administration._--_See_
_Index_, vol. 2.
_Delaware_, vote for President, 168.
_Delegates_ from Territories. _See_ _Index_, vol. 1.
DELEMOS, letter in cipher of Gen. Wilkinson to, 642; do. letter
of, 665.
DENNIS, JOHN, Representative from Maryland, 50; on considering
the resolution to inquire into the official conduct of Judge
Chase, 92, 111; on the resolution to appoint a committee to
inquire into the official conduct of Judge Chase, 122; on the
retrocession of the District of Columbia, 304. _See_ _Index_,
vol. 2.
_Departments, Executive._--_See_ _Index_, vol. 1.
DESHA, JOSEPH, Representative from Kentucky, 613.
DICKINSON, JOHN, his death announced in the Senate, 553.
DICKSON, WILLIAM, Representative from Tennessee, 51, 285, 378,
494. _See_ _Index_, vol. 2.
_Diplomatic or Foreign Intercourse._--_See_ _Index_, vol. 2.
_District of Columbia_, resolution for the recession of,
considered, 161; point fully considered at the last session,
161; motion to go into committee lost, 161; motion to discharge
the committee carried, 161; resolutions relative to, 295;
resolutions for recession considered, 303; motion to postpone
lost, 303; not the intention to remove the Government, 303;
object to cede back to Maryland and Virginia all but the
city of Washington, 303; question of power in Congress after
accepting the cession, 304; constitution examined, 304; its
possession every way expensive to the General Government, 304;
the people of the District are the merest subjects in their
condition, 304; in a degraded situation, 304; the resolutions
are unconstitutional, inexpedient, and unjust and cruel to the
people of the District, 304; resolutions of high importance,
306; it is said the recession cannot be made without the
consent of the people of the District and of the United
States, 306; these points examined, 306; seat of Government is
fixed permanently here if the right of jurisdiction extended
only over the soil covered by the public buildings, 306; if
the right of Congress to recede is admitted, the whole will
eventually be receded, 307; two questions involved, 307;
difficulty of legislating for ten miles square considered, 308;
the State Legislatures had presumed Congress would exercise
exclusive jurisdiction, 308; the removal of the seat of
Government, which would be the consequence of recession, is not
only inexpedient, but also unconstitutional, 308; these points
examined, 308; what are constitutions, 308; if the object is
to recede all but the city of Washington it operates a change
of the seat of Government, 309; this point demonstrated,
309; Congress not prepared to act on these questions at
present, 309; constitutional point examined, 310; expediency
of retrocession, 310; is Congress competent to legislate for
the people of the District, 310; no, 310; not equal to the
task, 310; the end of the resolutions is to reduce the present
quantum of territory, 311; expense and time in legislating for
the territory, 311; business of the Union interrupted, 311;
resolutions lost, 311.
_Bill to prohibit the exaction of bail_ in certain suits within
the District of Columbia, read third time, 312; proper measure
to prevent the oppression of malignant creditors, 312; not
essentially necessary, 312; recommitment moved, 312; lost, 312;
bill lost, 312.
_Bill to authorize the court_ of the District of Columbia to
decree divorces in certain cases, 313; reasons for the bill,
313.
_Emancipation in the District_, reasons for, considered, 313;
rejected, 313.
_Divorces_, bill to authorize court of District of Columbia to
grant, postponed, 343.
_Documents, Executive_, communicated to the House, 379.
DORSEY, WALTER, his testimony for the defence on the trial of
Judge Chase, 227.
_Drawbacks._--_See_ _Index_, vol. 1. _Duties on Imports._
DURELL, DANIEL M., Representative from New Hampshire, 612; on
fortifications and gunboats, 628.
_Duties on Imports_, passage of the bill imposing specific
duties, 342.
_Duties on Imports, bill for the protection of commerce_
against the Barbary Powers considered in the House, 158; moved
to strike out first section laying increased duties to provide
means for protection, 159; improper to tack to the provisions
for the Mediterranean service, upon which there could be no
difference of opinion, a new tax, in respect to which they
could not agree, 159; the increased rate of duty proposed,
159; duties already high, 159; why impose a tax of $750,000 to
meet an expenditure of $500,000? 159; now about to authorize
a greater expense than usual, and the Legislature are called
upon to provide means, 159; the public debt should never be
increased while the resources of the country are adequate
to its wants, 159; statements of the opposition examined,
159; average rate of ad valorem duty thirteen and a half per
cent., 160; goods charged with ad valorem duties are the most
difficult to smuggle, 160; duty on spirits not too high though
it yields a fifth of the revenue, 160; duty on sugars, on salt,
on wines, on woollens, 160; design to apply the resources to
the support of the navy, 160; the only objection is to the
imposition of unnecessary taxes, 161; the measure gives an
improper impression of the causes of the bill, 161; motion to
strike out lost, 161; do. renewed in the House and lost, 161.
_Salt_, motion for an inquiry relative to the duty on, 295;
various rates which have been imposed, 295; present duty twenty
cents per bushel, 295; equal to thirty cents, 295; finances
amply sufficient to authorize a reduction, 296; imports of
salt, 296; origin of Liverpool salt, 296; distinction to be
made against British salt, 297; to retrieve reputation of
salted provisions, 297; resolution moved, 297; state of the
finances will not allow a reduction, 297.
Resolution to inquire into the expediency of repealing the
duty on salt, 479; committee already instructed, 479; duty
too high, and falls heavy on the agricultural interest, 479;
adopted, 479; bill to repeal duty on salt and bounty on
exported salt provisions and pickled fish, considered, 479;
_note_, 479; moved to amend so as to take off eight cents of
the duty, 480; a difference of twenty cents on the bushel will
operate very seriously on those who have made shipments, 480;
changes should be gradual, 480; this duty was pledged for the
payment of the national debt, 480; no argument that it will
operate injuriously on shipments, 480; one of the objects of
the bill to get rid of the pledge to pay the debt, 480; the
taxes pledged will still exceed the amount for which they
were pledged, 481; can the Administration get along without
this tax, 481; immediate effect of this measure ruinous, 481;
further debate on the third section, 481; passage of the bill,
481.
Amendments of the Senate considered in the House, provisions
repealing the duty on salt being struck out, and imposing two
and a half per cent. duty, retained, 482; sole and indisputable
prerogative of the House to grant the money of the people, 482;
extent of the power of the Senate, 482; House should never give
up this privilege, 482; not a bill originating revenue, 482; a
question of necessity, 483; motion to agree to amendments of
Senate lost, 483; reasons for adhering to the disagreement,
483; committee of conference appointed, 483; Senate adhere,
484; House receded, 484.
In Senate bill passed, 491; in House bill for repeal referred,
502; passed, 503; _note_, 503.
_Importation of Slaves_, duties on considered in the House, 96;
South Carolina repealed her law prohibiting the importation
of slaves, 96; its repeal gives fresh activity to the trade,
96; to impose a tax on imported slaves is the extent of the
power of Congress, 96; resolution to lay a tax of ten dollars
on each slave imported, moved, 96; in Committee of the Whole,
resolution amended to lay a tax of ten dollars on each slave
imported into the United States and their Territories, 129;
repeal of the law of South Carolina, should not occasion so
much dissatisfaction here, 129; the law was repealed because
it was evaded, and could not be enforced by the State, 129;
this tax will not prevent the introduction of a single slave,
129; by laying the tax and deriving a revenue, the Government
will be giving a sanction to the trade, 129; effect of the
resolution, if adopted, would be injurious, 130; the question
is on the policy of laying the tax, 130; this point considered,
130; to import slaves is to import enemies into our country,
131; danger of a rebellion, 131; effect of holding slaves on
the national character, 131; importation of slaves is in direct
contradiction to the principles of morality, 131; Eastern
States engaged for many years in smuggling them, 132; the
resolution would sanction the trade, 132; all declamation and
appeal to the passions in behalf of the resolution unnecessary,
132; impose the tax and it becomes the duty of our armed
ships to protect the trade, 132; the question is not whether
we shall prohibit the slave trade, but whether we shall tax
it, 132; other considerations urged against its policy, 132;
as a profitable article of commerce it is as eligible for
taxation as any other, 133; by laying the tax Congress does
all it can to discourage the trade, 133; this is the only
constitutional power at present enjoyed, 133; the question
should be considered only in its commercial, economical, and
fiscal relations, 133; present extent of the commerce, 133;
present prohibitory statutes disregarded by common consent,
133; arguments against the policy of the tax considered, 134;
so far from binding the nation to protect it by laying a tax,
it is already recognized in many of the States and permitted by
the constitution, 134; the condition of man subdued by fraud
or force delineated, 134; a tax will in some degree discourage
the traffic, 135; gentlemen reprobate a traffic as infamous
and horrid, and yet wish to draw a revenue from it, 135; South
Carolina had an undisputed right to do as she has done--why
single her out for censure, 135; it is not a mere question of
revenue, but whether the Government of the Union shall condemn
the act of a State which she was fully authorized to pass, 135;
should not be hurried away by passion and feeling, 136; the
Treasury wants money, and taxes must be laid, 136; this article
should be taxed because the trade is odious, 137; motion
that the committee rise and report progress, as there is a
prospect the Legislature of South Carolina will repeal the law
admitting the importation, 137; arguments urged by the friends
of the measure two-fold, 138; people of South Carolina not
friendly to the act admitting the importation, 138; question of
postponement lost, 139; resolution adopted, 139; bill ordered,
139; question on the day for the consideration of the bill,
140; motion to postpone to next session, 140; all concede that
the tax will not diminish the traffic, 140; the revenue should
be appropriated to humane purposes, 140; propriety of agreeing
to the postponement considered, 140; a postponement will be
destructive of the bill, 141; the law would have a partial
effect, 141; brief postponement carried, 142; _note_, 142.
Motion in House to impose a tax of ten dollars per head on
each slave imported, 385; ninth section of the constitution
read, 385; no reason why this article of importation should
remain without duty, while others pay, 385; the adoption of
the resolution can only express the opinion of Congress of
the impropriety of importing slaves, 386; be partial in its
operation, 386; a question of revenue merely, 386; partial
and unjust in its operation, 386; a duty on South Carolina
alone, 386; it would have prevented a large importation if
it had been adopted two years ago, 386; black men not the
only men imported into this country, 387; moved to strike out
the word “_slaves_,” and insert the word “_persons_,” 387;
this preserves the words of the constitution, 387; under the
constitution a tax can be laid on the importation of slaves or
freemen, 387; object to express disapprobation of the traffic,
387; amendment would make a false impression in Europe, 387;
amendment necessary to the passage of a law on this subject,
388; how should a cargo of slaves be entered at the Custom
House, 388; proceedings in North Carolina on the subject,
389; the amendment does not correspond with the spirit of the
constitution, 389; this point examined, 389; amendment lost,
389; object of the resolution to raise a revenue, or to point
the disapprobation of the nation against South Carolina, 389;
is this a course to secure peace and harmony, 389; amount to
be realized, 390; reasons for not exempting this article,
390; further debate, 391; resolution agreed to, 391. A new
section to the bill moved, prohibiting the importation of all
slaves into the United States, 401; what would be the effect of
forfeiture in case of smuggling slaves, 401; further debate,
401; ordered to be engrossed, 401; read third time, 418; bill
recommitted, 418.
Bill to prohibit the importation of slaves in Committee of the
whole House, 494; strong objections to forfeiture of persons
of color imported, 494; under the bill it was followed by a
sale of these persons as property, 494; better be left to the
laws of the several States, 494; in some States there could
be no such thing as a slave, 494; fugitives in the State
of Massachusetts faithfully restored, 494; her laws do not
interfere with persons passing through, only those coming there
to reside, 495; _note_, 495; a valid sale would interfere with
these laws, 495; this motion an old thing in a new shape, 495;
importation in the free States an improbable thing, 495; the
United States should retain control of them, 495; if imported
in the south they will be slaves, if at the north vagabonds,
495; what shall be done with the negroes if they are not
forfeited, 495; to leave them to the operation of the laws of
the States is to leave them to become slaves, 495; slaves will
continue to be imported unless you forfeit them, 496; motion
to refer the bill to a select committee, 496; reasons for the
motion, 496; if imported contrary to law they are to be seized
as smuggled goods, and treated accordingly, 496; what besides
the negroes can be found for the law to operate on, 496;
committee rose, 496; objections against the amendment reduced
to two; first, that a forfeiture is necessary to deprive the
importers of every motive to introduce any slaves into the
country and render prohibition effectual; second, if slaves
are emancipated and turned loose in the Southern States they
will be a nuisance, 497; objections not well founded, 497; a
forfeiture implies a right of ownership in the importer, 498;
better do nothing than forfeit them, 498; the practical state
of things, 498; what is our duty? 498; objections to forfeiture
considered, 499; only a commercial question, 499; forfeiture
only will effect prohibition, 499. _See_ _slaves, importation
of_.
_Bill laying more specific duty on certain articles_, and
imposing light money, read a third time, 158; postponement
moved, 158; a postponement a rejection of the bill, 158;
it increases the existing rate of duties, 158; remove the
fraudulent practice in making out invoices of the articles,
subject to ad valorem duties, 153; promote manufacturers in the
Eastern and Middle States to the detriment of the Southern,
158; postponement lost, 158; bill passed, 158; _note_, 158.
_Remission of Duties on Books_, report of the committee
considered, 289; constitution a grant of limited powers, 289;
its leading feature an abhorrence of exclusive privilege, 289;
the privilege asked for is referred to the first section of
the eighth article, 289; the impost shall be uniform, 289;
one quantum, one mode of collecting, and one manner, 289; if
one class is exempted, others may be also, 289; objectionable
on the ground of expediency, 289; constitutional objection
considered, 289; the power of Congress adequate to promote
science and literature, 289; mistake to suppose that a denial
to exempt books from impost is a tax on literary institutions,
and, therefore, not uniform, 290; these institutions soon
be rivalling booksellers, 290; report against the remission
adopted, 290.
_Duties on Imports._--_See_ _Index_, vols. 1 and 2.
_Duties on Tonnage._--_See_ _Index_, vol. 1.
DWIGHT, THOMAS, Representative from Massachusetts, 50, 285.
DWIGHT, THEODORE, Representative from Connecticut, 493; on the
importation of slaves, 501.
E
EARLE, JOHN B., Representative from South Carolina, 51, 285,
378, 494.
EARLY, PETER, Representative from Georgia, 52, 285, 378, 493;
opposes a repeal of the Bankrupt Law, 79; on the resolution to
appoint a committee to inquire into the official conduct of
Judge Chase, 117; on the Georgia militia claims, 125; appointed
to impeach Judge Chase at the bar of the Senate, 174; opens the
argument for the prosecution on the trial of Judge Chase, 229;
on the appointment of an agent to collect information on the
Louisiana lead mines, 287; on the retrocession of the District
of Columbia, 306; contingent expenses, 388; on laying a tax
on imported slaves, 389, 390; on the payment of witnesses on
the trial of Chase, 412; on importations from Great Britain,
439; on a plurality of offices in the same person, 469; on the
importation of slaves, 495, 496, 501; on the appropriation to
build gunboats, 517; on securing the privilege of the Habeas
Corpus, 525. _See_ _Index_, vol. 2.
EATON, GENERAL, resolutions of thanks submitted in the Senate
to Gen. Eaton and his companions, 371; resolution in the
House to present a sword to Gen. Eaton, 380; moved to amend
by striking out “sword,” and inserting “medal,” 381; only
on extraordinary occasions, that medals are awarded, 381;
the case of Preble, 381; nothing can be done which fame has
not anticipated, 382; honors should be apportioned to merit,
382; the advantages derived from the services of Gen. Eaton
considered, 382; sword is a reward for mere valor; in this case
the valor displayed is only a small part of the distinction,
382; what services were rendered, 382; amendment carried,
382; verbal amendments proposed, 382; resolution reported to
the House, and referred to a select committee, 333; bill to
authorize the settlement of accounts with Gen. Eaton, 482.
_Electoral votes for President_ in 1804--counting of, 167;
counting of, 340.
_Electors of President._--_See_ _Index_, vol. 1.
ELMER, EBENEZER, Representative from New Jersey, 86, 285, 377,
493; on the retrocession of the District of Columbia, 309; on
incorporating a church in Georgetown, 408; on importations from
Great Britain, 440; on a plurality of offices, 469; on the
appropriation to build gunboats, 516; on securing the privilege
of the Habeas Corpus, 541. _See_ _Index_, vol. 2.
ELLERY, CHRISTOPHER, Senator from Rhode Island, 3, 163. _See_
_Index_, vol. 2.
ELLICOTT, ANDREW, letter to the Secretary of State, 668.
ELLIOTT, JAMES, Representative from Vermont, 50, 285, 377,
493, 612; remarks on the death of Samuel Adams, 52; on the
amendment to the constitution, relative to the election of
President, 60; on the resolution to carry the Louisiana treaty
into effect, 64; on the bill to authorize the President to take
possession of the Louisiana territory, 73; advocates a repeal
of the Bankrupt Law, 79; on the inquiry into the official
conduct of Judge Chase, 89, 93; on the resolution to appoint a
committee to inquire into the official conduct of Judge Chase,
108; on the bill relative to the Louisiana territory, 144; on
the Georgia claims, 319; an the reference of the letter of the
Postmaster General, 333, 334; on the presentation of a sword to
Gen. Eaton, 381; relative to the impressment of seamen, 384;
on importations from Great Britain, 440; on the suspension of
the Habeas Corpus, 505; on the appropriation to build gunboats,
517; on securing the privilege of the habeas corpus, 527; on
fortifications and gunboats, 632.
ELLIS, CALEB, Representative from New Hampshire, 377, 493.
ELY, WILLIAM, Representative from Massachusetts, 377, 493,
612; on the application of the Society of Harmony, 404, 405,
407; on the importation of slaves, 500.
_Emancipation in the District of Columbia_, resolution on, 313.
_Embargo_, Message from President Jefferson recommending, 640;
documents accompanying the Message, 641; resolution relative
to offered, 641; House informed that the Senate had passed
a bill laying an embargo, 641; action of the House on the
bill, 641; bill passed, 641; act laying an embargo, 642; bill
to authorize the President, under certain contingencies, to
suspend the embargo, considered, 677; the Orders of Council by
Great Britain, and the decrees of France, the causes of the
embargo, 677; if removed, the embargo should be withdrawn,
677; possible they may be modified or changed before another
session, 677; let the public see we have done every thing to
relieve them from the distress of measures rendered necessary
by the conduct of other nations, 677; no argument urged against
delegating the exercise of special powers, 678; distinction
between the authority to suspend a law in operation, and one
not commenced, 677; this delegation of power examined, 677;
power to lay an embargo considered, 679; our Government, by its
conduct, the author of the cause of the embargo, 680; author of
the resolution laying the embargo, 680; rejection of the treaty
of December, 1806, 681; circumstances of the two treaties and
their provisions, 681; the subject of blockades, 683; the
question of impressment, 683; objectionable condition of the
treaty, 684; assertions respecting the Administration, 685;
either treaty is preferable to the present state of affairs,
686; raise the embargo and arm our vessels, 686; objections
to an embargo, 686; fraught with impolicy, 687; impressment
the main block in the way of negotiation, 687; arming of our
merchant vessels produces war, 688; subject of the treaty, 688;
constitutionality of the embargo, 689; the embargo considered,
690; its immediate repeal only will save from great distress,
691; the resolution considered, 691; our fisheries, 692;
object of the embargo, 692; the resolution is pernicious, 693;
object of the embargo to make an impression on Europe, and
the resolution, tells them we are already tired of it, 693;
foreign nations will see we are determined the embargo shall
never be repealed until they revoke their decrees and orders
in council, 693; further debate, 694; the discretion to the
President should be absolute, but the resolution in pretence
only gives it, 695; amendment moved, 695; amendment more
objectionable than the original, 696; it limits the discretion
of the President to specific circumstances, 696; interpretation
of the constitution, 696; expediency of investing the
President with this power, 697; some provision relative to
the embargo unavoidable, 697, 698; two characteristics of the
embargo power, 699; the most enormous power in the manner in
which it affects the hopes and interests of the nation, 699;
which position of invested power most auspicious to a happy
issue, 700; constitutionality of the bill, 700; to give the
President power to suspend a law is equal to giving him power
to suspend all laws, 701; similar powers have been exercised,
702; other cases stated, 702; question of power examined, 703;
constitutional power of the House, 703; history of former
embargoes, 704; does the constitution restrain us from giving
this power, 704; precedents, 705; the pressure and weight
of the embargo should not have influence in deciding this
question, 705; pass the bill, and the Executive has it in his
power to declare war, 706; amendment lost, 706; moved to amend
so as to repeal the embargo, 706; remarks thereon, 706; bill
passed, 707.
_Embargo._--_See_ _Index_, vol. 1, _Great Britain, retaliating
measures upon_.
EPPES, JOHN W., Representative from Virginia, 50, 285,
377, 493, 613; on the resolution to appoint a committee to
inquire into the official conduct of Judge Chase, 118; on the
postponement of the bill laying a tax on imported slaves,
141; on the retrocession of the District of Columbia, 306; on
importations from Great Britain, 443; on a plurality of offices
in the same person, 467; on naval appropriations, 475; on the
exclusion of military and naval officers from civil employment,
477; on the suspension of the habeas corpus, 507; on inquiry
into the conduct of General Wilkinson, 658; on suspending the
act of non-importation, 705; on home manufactures, 710.
EUSTIS, WILLIAM, Representative from Massachusetts, 50, 286; on
the bill authorizing the President to take possession of the
Louisiana territory, 75; opposes a repeal of the bankrupt law,
79; in favor of augmentation of the navy, 88; on the resolution
to appoint a committee to inquire into the official conduct
of Judge Chase, 115; on the bill relative to the Louisiana
territory, 145; on expenses of repairs at Navy Yards, 314; on
the Georgia claims, 325, 331. _See_ _Index_, vol. 2.
EWING, SAMUEL, his testimony for the defence, on the trial of
Judge Chase, 217.
_Ex-Bashaw of Tripoli_, report of committee in the Senate on
Message relative to, 370.
_Ex-Bashaw of Tunis_, bill for relief of, passed, 484.
_Excise Laws._--_See_ _Index_, vol. 1.
_Executive Departments._--_See_ _Index_, vol. 1.
_Expatriation._--_See_ _Index_, vol. 2.
_Expunging the Journal of the Senate_ ordered, 376; _note_, 376.
F
FENNER, JAMES, Senator from Rhode Island, 345, 487, 551.
FINDLAY, WILLIAM, Representative from Pennsylvania, 50, 285,
377, 493, 612; on the resolution to inquire into the official
conduct of Judge Chase, 99; on a tax on imported slaves, 132,
140; on the remission of duties on books, 289, 290, 291; on the
retrocession of the District of Columbia, 307; on the Georgia
claims, 327; on importations from Great Britain, 438; on
suspension of the embargo, 703. _See_ _Index_, vols. 1 and 2.
FISK, JAMES, Representative from Vermont, 377, 493, 612; on
laying a duty on imported slaves, 387; on a plurality of
offices in the same person, 466; on the appropriation to build
gunboats, 517; on excluding settlers from the public lands,
545; on fortifications and gunboats, 631; on suspension of the
embargo act, 687; on inquiry into the conduct of Judge Innes,
708.
_Flag of the United States._--_See_ _Index_, vol. 1.
_Florida, purchase of_, motion to refer to a select committee,
353; confidential message from the House, 353; bill relative
to, amendment of, 353; third reading of bill in Senate, 354;
motion to postpone, 354; amendments offered, 354; passage of
the bill in the Senate, 355; _note_, 355.
_Foreign Ministers_, in Senate, bill to prevent the abuse of
the privileges and immunities of, considered, 364; two points
of view to be considered, 364; one, as the provisions of the
bill relate to the law of nations--the other, as they regard
the Constitution of the United States, 364; privileges under
the law of nations, 364; no citizen of a republic enjoys such
a privilege, 364; writers have assigned various reasons for
this phenomenon in politics and morals, 364; this arises from
the nature of their office and duties, 365; experience shows
the necessity of erecting some barrier against the abuse of
these privileges, 365; the provisions of the bill considered
in detail, 366; treatment in case of heinous offences, 366;
do. of offences against the Government, 366; relations which
the bill bears to the Constitution of the United States, 366;
circumstances in which the bill originated described, 367; by
the passage of the bill we may prevent the spread of an evil
which threatens the dearest interests of the nation, 368; bill
ordered to third reading, 369; various amendments proposed and
carried, 369; bill lost, 369.
FOWLER, JOHN, Representative from Kentucky, 50, 383, 497. _See_
_Index_, vol. 2.
_France, relations with_, during John Adams’ Administration.
_See_ _Index_, vol. 2.
_Franking Privilege._--_See_ _Index_, vols. 1 and 2, _Post
Office bill_.
FRANKLIN, JESSE, Senator from North Carolina, 3, 163, 547;
elected President pro tem. of Senate, 44. _See_ _Index_, vols.
1 and 2.
FRANKLIN, MESHACK, Representative from North Carolina, 613.
_Freedom of conscience._--_See_ _Index_, vol. 1.
_French Refugees._--_See_ _Index_, vol. 1.
_French Spoliations bill_, relative to, 380.
_French Spoliations._--_See_ _Index_, vol. 2.
_Frontiers, protection of._--_See_ _Index_, vol. 1.
_Fugitives from Justice._--_See_ _Index_, vol 1.
G
GAILLARD, JOHN, Senator from South Carolina, 167; _note_, 167,
345, 485, 550.
_Galliopolis_, petition of the inhabitants of, 353.
GAMBLE, ROBERT, his testimony for the defence on the trial of
Judge Chase, 224.
GANNT, Rev. Dr., Chaplain of Senate, 4, 348. _See_ _Index_,
vol. 2.
GARDENIER, BARENT, Representative from New York, 612; on
building gunboats, 627; on fortifications and gunboats, 629; on
inquiry into the conduct of General Wilkinson, 645.
GARDNER, FRANCIS, Representative from New Hampshire, 612.
GARNETT, JAMES M., Representative from Virginia, 377, 493, 613.
_General welfare clause examined._--_See_ _Index_, vol. 1.
_Georgia_, vote for President, 168.
_Georgia Land Claim._--Resolutions in the House relative
thereto offered, 142; referred, 142; bill relative to
considered, 148; desirable to take the sense of the committee
in the first instance on the resolutions, 148; not our duty
to give an opinion, whether the Legislature of Georgia acted
wickedly or uprightly, 149; no opinion required from us,
149; the committee should have stated whether the facts in
the resolutions are erroneous or not, 149; certain of the
claims are not recognized, either by the State or the United
States--let gentlemen prove it if they can, 149; no pledge
has been given, or it can be proved, 149; the recognition of
these claims is equally a violation of the rights of the State
of Georgia, with a rejection of them, 150; the resolutions
examined in detail, 150; further statement of facts, 151; moved
to postpone the resolutions to the next session, 153; the
principles of the resolutions are not abstract, 153; when we
are called to compromise claims, can we not determine whether
they are founded in justice or not? 153; it is necessary to
determine the validity of the act of 1795, in order to decide
the justice of compromising claims under it, 152; point upon
which the decision must turn, 153; comparison of the facts
with the resolutions, 153; evident the claims under the acts
of Georgia have no validity, 154; a stain on our character to
grant compensation for their pretended losses to any of those
adventurers who made the spurious contract with Georgia in the
year 1795, for the purchase of her western territory, 154;
sources of information that led to this conclusion, 155; the
Yazoo contract, how obtained, 155; reception of the law of
1795 by the people of Georgia, 155; vote on the postponement
of the resolutions taken separately, 156; carried on final
vote, 157; _note_, 157; report of committee for appointment of
commissioners considered, 315; report confined to statement
of facts, 316; is a summary of all, 316; report considered in
the House, 316; amendment proposed limiting the resolution to
a particular class of claims, 316; claim of the New England
Mississippi Land Company, whom it is proposed to debar from
any benefit of the five million acres, reserved in the compact
with Georgia to satisfy any claims not specially provided for
in that contract, 317; case of the Connecticut Reserve, 318;
further objections to the measure, 319; _note_, 319; various
questions proposed and examined, 320; did the State of Georgia
in 1795 possess a title to the territory in question? 320;
were the Legislature of Georgia in 1795 invested with power
to sell the territory, &c.? 320; can a legislature rescind a
contract made by its predecessors? 321; can the judicial power
declare a legislative act void, as having been passed by means
of corruption? 321; were the claims of the present claimants
recognized by the act of cession, &c.? 321; the equity of
the claims, and the policy of compromise, 322; the acts of
fraud, 323; the four land companies, 323; wrong sufficient
to invalidate the contract, 323; present applicants innocent
holders, 323; the question is, whether we are to do a good or
an injury to a class of men denounced as a band of speculators,
324; effects of the amendment proposed, 324; had the claimants,
at the time of their purchase, or not, a knowledge of the
fraud? 326; the arguments urged are not intended to influence
the judgment of the House, but to control the public mind by
an avowed appeal to the people, 326; silence and concert of
unprincipled men, 326; Message of the President in February,
1795, considered, 327; title of Georgia doubtful, 327; lands
sold by Georgians to citizens of Massachusetts, at Boston, 327;
the bargain and sale fair and legal, 328; amount of land sold,
328; the law of Congress taking possession of the government
of the territory, 328; conditions on which Georgia surrendered
her right of soil, 329; question of title given up, question
turns on expediency, 329; equitable considerations urged, 329;
observations on the various objections urged, 330; manner of
selling the land in the Eastern States, 331; story of the
distressed female applying to the Magdalen Hospital, 332.
Present claimants no right in law or equity to the lands in
question, and policy does not demand the interference of the
national Legislature, 336; Matthew Lyon explains his share
in the contracts, 336; _note_, 337; how could Georgia have a
pre-emption title to the lands while the Indian title still
existed? 337; notoriety of the fraud is evidence that the
present claimants are not innocent purchasers, 337; resolution
agreed to, 337; _note_, 338.
_Georgia Limits_, in House, report on memorial of the
Legislature of Georgia, 403; report deferred, 404.
_Militia Claims._--Report of the committee, in the House, on
claims against a petition for pay as militiamen, called out
in the State of Georgia for protection of that State against
the Indians, considered, 125; they were called out under
the authority of the Government of the United States, which
is bound to compensate them, 125; petitioners must look for
compensation to the State of Georgia, which has agreed to
receive a certain sum in full of all demands for military
service, 125; _note_, 125; interpretation of the articles of
cession, 125; statement of facts, 126; committee assume the
principle that the State was bound in the first instance to
pay the soldiery, notwithstanding the ulterior responsibility
of the General Government, 126; reasoning to sustain this
principle examined, 126; the troops were called out in all
cases by the State Executives, on instructions from the General
Government, 126; two modes marked out in the constitution in
which the militia may be called into service, 127; when a
service is performed, the party for whom it is performed is the
only one responsible for the compensation, 127; a distinction
taken between the situation of troops called into the field
by order of General Government, and those called by State
Executives on the authority of the former, 127; this proves
nothing in the present case, 127; has the right of peace and
war been yielded to the General Government, and yet the States
bound to compensate for war services, 128; the simple question
considered by the committee was, whether compensation had or
had not been rendered for those services, 128; this depended
upon the decision of another question, whether the State of
Georgia was in the first instance liable for these claims, 128;
two ways by which the militia of a State may be called out by
the Executive of the United States, 128; what are the facts in
this case? 128; what is the nature of the compromise made in
the case, 128.
_German Language, laws in._--_See_ _Index_, vol. 2.
GILES, WILLIAM B., Senator from Virginia, 163, 552; reports
the bill for the Government of the Territory of Orleans, 166;
on the order of proceedings in the case of John Smith, 554; on
expelling Senator John Smith, 589. _See_ _Index_, vols. 1 and 2.
GILLESPIE, JAMES, Representative from North Carolina, 78, 285;
decease of, 312. _See_ _Index_, vols. 1 and 2.
GILMAN, NICHOLAS, Senator from New Hampshire, 345, 485, 547.
_See_ _Index_, vols. 1 and 2.
GODDARD, CALVIN, Representative from Connecticut, 50, 286; on
the call upon the President for documents showing the title to
Louisiana, 55; on the resolution relative to public roads, 84;
on improving the navigation of the Potomac, 291. _See_ _Index_,
vol. 2.
GOLDSBOROUGH, CHARLES, Representative from Maryland, 377, 493,
612; on a Naval Peace Establishment, 402.
GOOCH, PHILIP, his testimony for the defence on the trial of
Judge Chase, 224.
GOODRICH, CHAUNCEY, Senator from Connecticut, 551. _See_
_Index_, vols. 1 and 2.
GOODWYN, PETERSON, Representative from Virginia, 50, 288, 377,
493, 613.
GOVANE, WILLIAM S., his testimony for the defence on the trial
of Judge Chase, 328.
_Granger Gideon, Postmaster-General_, letter to the House, 332;
considered, 333; a second letter stating his interest in the
Georgia grants, 333; motion to refer to a select committee,
333; an affair of honor between two gentlemen and Congress has
nothing to do with it, 333; Congress has no power to remove
the Postmaster-General, if the charges were true, 333; nothing
more reasonable than to grant the reference, 333; the letter
couched in such language the House should not listen to it,
334; too late in the session for this business, 334; nothing
disrespectful in the letter, 335; if the charges are true, the
President is the proper person to apply to for removal of the
officer--subject postponed, 336.
GRAY, EDWIN, Representative from Virginia, 50, 288, 379, 497,
613.
_Great Britain_, retaliatory measures upon in Washington’s
Administration. _See_ _Index_, vol. 1.
GREEN, ISAIAH L., Representative from Massachusetts, 377, 493,
612.
GREGG, ANDREW, Representative from Pennsylvania, 50, 377,
494; on the resolution to inquire into the official conduct
of Judge Chase, 91; on a tax on imported slaves, 137, 141;
on the bill relative to the Louisiana Territory, 144, 145; on
the bill to bridge the Potomac, 290; on the Georgia claims,
329; on the reference of the letter of the Postmaster-General,
334; on the Yazoo claims, 379; submits a bill relative to a
Naval Peace Establishment, 385; on discharging the committee
from consideration of invasion of neutral rights, 394;
introduces resolutions of non-intercourse, 395; on a Naval
Peace Establishment, 402; on the application of the Society
of Harmony, 404, 405; on the amendment of the constitution
relative to the removal of Federal Judges, 415; on importations
from Great Britain, 419; on a plurality of offices in the same
person, 472; on the exclusion of military and naval officers
from civil employment, 476; on the appropriation to build
gunboats, 517; on excluding settlers from the public lands,
543; Senator from Pennsylvania, 547. _See_ _Index_, vols. 1 and
2.
GRIFFIN, THOMAS, Representative from Virginia, 50, 285; on the
resolution to appoint a committee to inquire into the official
conduct of Judge Chase, 114.
GRISWOLD, GEORGE, Representative from New York, 50, 285.
GRISWOLD, ROGER, Representative from Connecticut, 50, 286; on
the motion to call on the President for documents relative
to the acquisition of Louisiana, 54; on the amendment to
the constitution relative to the election of President, 58;
against the resolution to carry the Louisiana Treaty into
effect, 61; remarks on the bill authorizing the President
to take possession of the Louisiana Territory, 73, 75; on
the resolution relative to public roads, 83; in favor of
augmentation of the Navy, 88; on the motion to inquire into
the official conduct of Judge Chase, 90, 92, 104; on the
postponement of the bill to tax imported slaves, 141; on
protection against the Barbary Powers, 159; on the remission
of duties on books, 289; on improving the navigation of the
Potomac, 292; on the retrocession of the District of Columbia,
307. _See_ _Index_, vols. 1 and 2.
_Gunboats._--Report of the committee, in the House, on
fortifying harbors considered, 516; question on filling the
blank with $250,000 for building fifty gunboats, 516; better
appropriate the money to solid and durable fortifications,
516; a sufficient number already, 516; the system of gunboats
a matter of experiment, 516; if the experiment succeeds, then
let us vote liberally, 516; the House has already refused to
man the gunboats now built, 516; when the necessity arises
the boats can be built, 517; more information desired on the
subject, 517; experience has proved them to be useful, as in
the late war with Tripoli, 517; the expense, as compared with
that of frigates, 517; advantages and disadvantages, 518;
number already on hand, 518; postponed, 518.
In House, the bill from the Senate, for building gunboats and
the bill for fortifying harbors from committee on aggressions,
considered, 625; moved to reduce the number of gunboats to
be built from one hundred eighty-four to one hundred, 625;
gunboats could not have prevented any one of the aggressions
of which we complain, 625; could only act in harbor defence,
625; some frigates should be provided, 625; other means of
defence can be provided in other bills, 625; a sufficient
number should be built, or the money would be thrown away, 625;
a frigate costs more than gunboats with same number of guns,
625; gunboats not a mere experiment, 625; without the boats
the squadron would not have been competent to attack Tripoli,
626; these boats crossed the Atlantic, 626; of 60 or 70 tons
burden, 626; duty of the House to provide effectual protection,
626; fortifications and gunboats regarded by the committee as
the best system, 626; and such a number of boats, they say, are
wanting, 626; if the object is to protect the country, this
bill should pass, 626; if ships or frigates will add to the
protection, they can be voted when the subject comes up, 626;
these boats eminently and essentially useful as a species of
defence, 626; expense of a frigate and gunboats compared, 626;
shall a certain sum of money be appropriated for the defence of
ports and harbors? 626; never should be said that we ought to
defend ourselves beyond our own shores, 626; the information
obtained from the Executive was in favor of gunboats, 627;
when the number necessary is known, the money should be
appropriated, 627; the situation of the country in relation
to Great Britain should be considered, 627; no objection to
vote for gunboats if land batteries will be sufficiently
provided for, 627; a visionary scheme to evade the real object
of defence, and to introduce false notions of economy, 627;
intention of the committee to erect new works and repair old,
628; after such a proposition as this, no one which could be
made would be surprising, 628; the great object was to arm the
nation to meet an event which they would be called on before
long to meet, 628; question now on one species of this arming,
628; gunboats in connection with fortifications cannot obtain
the end proposed, 628; these boats cannot be used in certain
ports to which they are assigned, 628; reasons, 628; moved to
strike out sixty-four gunboats and substitute four frigates,
628; question on striking out, 629; difference of opinion on
the subject of gunboats, 629; bill accords with the sentiments
of the Northern States, 629; if the motion prevails, a million
dollars more will be required, 629; United States have not
means to build a fleet, 629; time for a naval establishment has
passed, 630; not in our power to provide as respectable a fleet
as Denmark, 630; let us then apply our limited means to a mode
of defence on which more reliance can be placed, 630; put the
harbors in such a state of defence we shall not feel the want
of a Navy, 630; gunboats a part of land defence, 630; British
not dared to attack a single French port, 630; other modes of
defence should be taken into account at the same time, 631; it
would be a proper measure now to increase the Navy, to prevent
aggression from a foreign power, 631; no danger can arise to
the liberties of the people from an increase of the Navy, 631;
had more tons of shipping afloat and more largely concerned in
the freedom of the seas than any nation on earth save one, and
shall they lie unconcerned while the dearest rights of nations
are destroyed by that one? 631; this measure is beyond our
means, and is not a measure of exigency, 631; what became of
the Navy of Denmark? and what will be the fate of ours, 632; it
has been charged that the formidable Navy raised by the former
Administration has been sold off by this, and the nation left
without defence, 632; amendment negatived, 632; presents one of
those great crises that rarely occur in the annals of a nation,
632; a crisis of awful moment, 632; principal unavowed argument
in favor of the present measure is the supposed predilection of
the Executive, 633; a new volume of the celebrated proclamation
and gunboat system, 633; subject of messages, 633; opinions
of naval officers annexed, 634; every argument is answered by
saying it is a popular system, 634; with whom is it popular?
634; the whole seaboard interested in this question, 634;
utility of gunboats examined, 635; objections to the bill
considered, 635; reasons for the measure, 636; origin of
gunboats, 636; a period has arrived when this nation must
receive a satisfaction for injuries inflicted, and security
for the future, or the sword must be drawn, 637; negotiations,
637; course of the Administration, 637; evidence of the utility
of gunboats, 637; until gentlemen on the seacoast could better
agree on the number and utility of gunboats, so large a number
should not be built, 638; how are the boats to be manned, 638;
attempt to persuade the public that the friends of this measure
are about to drain the Treasury for a useless measure of
defence, 638; does the present state of our foreign relations
require effective measures, 638; will the nation consent to
expose to an enemy the whole extent of our seacoast, without
an effort to repel him until he is landed? 639; what are the
means in our power best calculated for defence? 639; either
gunboats or ships, 639; opinion of naval men that gunboats may
be useful, but they should not supersede all other means of
defence, 639; instead of a comprehensive system, measures are
laid before us by piecemeal, 640; objections to the measure,
640; bill passed, 640.
H
_Habeas Corpus, suspension of the writ of._--In the Senate,
committee appointed to inquire into the expediency of
suspending, 490; bill reported, 490; bill passed, 490;
confidential Message to the House, 490.
In House, on the question that proceedings on the bill be
had with open doors, 504; carried, 504; moved to reject the
bill, 504; do. withdrawn, 504; _note_, 504; information in
President’s Message, 504; existing laws sufficient, 504; its
suspension would hold out an improper idea of danger and
alarm, 505; danger nearly over, 505; this step never resorted
to before, 505; no apology for suspending this writ, 505; a
dangerous precedent, 505; most extraordinary proposition ever
presented to our consideration, 506; constitution forbids it
only in the case of self-preservation, 506; proposition is
to invest unlimited power in the supreme Executive, over the
personal liberty of the citizens, 506; nature and character
of the writ, 506; bill objectionable also in its details,
506; what evidence of the necessity of this measure? 507;
condition of the leader, 507; called by this bill to exercise
one of the most important powers vested in Congress, 507;
words of the constitution, 507; does the public safety require
its suspension? 507; this point examined, 508; constitution
does not restrict the power of the Government to such extreme
cases, 508; a rebellion exists, 508; a conspiracy has been
formed with deliberation, and existed a long time, 508; the
country is in a state of insecurity, 508; no insurrection ever
occurred like this, 508; the conspiracy considered, 509; nature
of this writ, 509; its effects on the individual and on the
community at large, 509; no insurrection to be compared in
magnitude to this, 510; a subject sanctioned by the Senate,
and worthy of discussion and reference, 510; satisfactory
proof of a rebellion should be obtained, 510; no doubt of its
existence, 510; this not sufficient to justify this measure,
510; it can be necessary only for the detection and conviction
of offenders, 510; once suspended in Massachusetts, and
regarded as useful, 511; House competent to reject the bill on
its first reading, 511; an improper measure coming from the
Senate should be viewed with jealousy, 511; an oblique attempt
to cover a certain departure from an established law of the
land, and a certain violation of the constitution, 512; the
case at issue is, whether the military government is subject
to the civil power, or the civil authority to the military,
512; it is merely a foreign intrigue, 512; if this bill passes
it establishes a new era in the Government, 513; a nation is
never enslaved at once, 513; the details of the bill, 514;
shall we exercise the only power with which we are clothed, to
repeal an important part of the constitution? 514; example of
England, 514; does the necessity exist? 514; in the opinion of
the President no danger is to be apprehended, 514; this bill
operates as an _ex post facto_ law, 515; bill rejected, 515.
_Resolution, in House, to make farther provision for securing_
the privileges of the writ of habeas corpus considered,
520; _note_, 520; necessity and importance of the provision
contemplated, 520; provision of the constitution, its
intention, 520; arguments in support of the motion, 520;
proceedings at New Orleans, 521; doubtful if a change in the
law is material, 522; acts of Congress determine the manner in
which this writ shall be enforced, 522; these acts considered,
522; events at New Orleans prove the necessity of preserving
the military subordinate to the civil authority, 523; the
officer at New Orleans has done an illegal act, at the risk of
his whole fortune in damages, 524; let the law take its course,
524; he has violated the personal right of the citizen, 524;
what are the facts? 524; importance of the writ, and questions
arising under it, make the reference proper, 525; the motion
and the speech accompanying it have a suspicious aspect on
certain judicial procedures depending now within these walls,
525; would they ward off punishment from traitors by condemning
the acts which produced their arrest? 525; this expression
by Congress will be an obstacle to the recovery of damages
against the Commander-in-chief, 525; where is the proof that
the provisions now in force are not sufficient for the security
of the person? 526; source of this opposition to the motion
a matter of astonishment, 526; information comes from the
President, 526; in defiance of the constitution persons have
been seized by the military authority, 526; is there probable
cause of arrest in the case of Alexander? 527; are there no
circumstances to justify Wilkinson? 527; two points in which
the subject has been examined, 528; the opinion is nearly
unanimous that the legal provisions now contemplated ought to
be made, 528; the United States as such do not possess any code
of common law, 528; not improper at the present time, 528;
sections of the constitution violated, 528; Wilkinson’s return
to the writ of habeas corpus, 529; a return of disobedience to
the civil institutions, 529; various objections to the motion
answered, 529, 530; what has occasioned this measure to be
brought before the House at this time, 531; violation of the
constitution charged upon Wilkinson, examined, 531; not proved
that there are not provisions by existing laws to enforce
obedience to the writ, 532; these laws exist in every State and
Territory, 532; Wilkinson only in contempt for disobedience
of the writ, 533; the courts have power to punish contempt,
533; the laws are ample, 533; questions depending on which
this proposition is calculated to operate, 533; is a flagrant
violation of the constitution to be remedied by an action of
damages, 533; conspiracy to separate Kentucky from the Union,
533; _note_, 533; quarter from whence this motion comes,
534; the constitution merely secures the writ, no penalty is
attached to its violation, hence the necessity for further
provision, 534.
The motion embraces two objects--to provide additional
penalties for the security of the privilege of the habeas
corpus, and to define the powers of the Supreme Court as to
issuing writs of habeas corpus, 535; is it necessary to pass
such a law as this? 535; if a constitutional right has been
infringed, does it follow that Congress ought to legislate
on the occasion? 535; Wilkinson’s transaction was not a
disobedience to this writ of habeas corpus, 536; an instance of
disobedience stated, 536; example quoted from English history,
537; the seizure of Ballman a violation of personal rights,
and of the constitution, 537; have the people the privilege
of this writ secured to them as fully and effectually as the
constitution intended, and as wise and prudent men ought to
desire? 537; the security shown to be at least uncertain,
538; principle of the celebrated statute of Charles, 538;
dilemma to which the opponents are reduced, 538; proceeding
of the Supreme Court, 539; objected that the subject cannot
be matured this session, 539; this whole business one of the
most unfortunate kind that could have happened to the United
States, 539; further arguments in favor, 539; points showing
the necessity of a reference, 540; was it discreet to refer the
resolution when it was manifest they could not go through with
the business, 541; this very transaction would be beneficial to
the country in showing the strength of feeling for the Union,
541; English history of this writ, 541; indefinitely postponed,
542.
HALSEY, SILAS, Representative from New York, 377, 493.
HAMILTON’S, ALEXANDER, _Report as Secretary of the
Treasury._--_See_ _Index_, vol. 1, _Treasury_.
HAMILTON, ARCHIBALD, his testimony for the defence on trial of
Judge Chase, 226.
HAMILTON, JOHN, Representative from Pennsylvania, 381, 493.
HAMMOND, SAMUEL, Representative from Georgia, 79.
HAMPTON, WADE, Representative from South Carolina, 51. _See_
_Index_, vol. 1.
HANNA, JOHN A., Representative from Pennsylvania, 50, 286.
_See_ _Index_, vol. 2.
_Harmony, in Indiana, Society of._--In House, bill to authorize
George Rapp and others to locate lands in Indiana on certain
terms, 404; the associates amounting to about three thousand
persons fled from oppression in Wirtemberg, 404; proposed to
cultivate the vine chiefly, 404; indulgence of time for payment
not unusual, 404; have citizens enough of our own who would
be glad to purchase on such terms, 404; no objection if they
are foreigners, 405; unusual mode of proceeding, 405; have men
that can cultivate the vine as well as foreigners, 405; further
debate, 405; bill passed to third reading, 405; recommitment
moved, 406; contract between Virginia and the United States
relative to these lands, as trustees we cannot violate the
trust, 406; let these settlers be scattered over the Union,
that all portions may be benefited by them, 407; donations of
land usual, 407; bill amended by inserting a rate of interest,
408; bill rejected, 408.
HARPER, ----, opens for the defence on the trial of Judge
Chase, 215; closes the argument for the defence on the trial
of Judge Chase, 258; against the adoption of the report of the
committee in the case of John Smith, 562.
HARRIS, JOHN, Representative from New York, 612.
HARRISON, WILLIAM HENRY, letter of, conveying resolutions of
the Legislative Council of Indiana, relative to the suspension
of the ordinance of 1787, 503. _See_ _Index_, vol. 2.
HASBROUCK, JOSIAH, Representative from New York, 50, 285.
HASTINGS, SETH, Representative from Massachusetts, 50, 384,
493; advocates a repeal of the Bankrupt Law, 79; on the
importation of slaves, 401. _See_ _Index_, vol. 2.
HAY, GEORGE, his testimony for the prosecution on the trial of
Judge Chase, 204.
HAZEN, GEN. MOSES, bill for the relief of the widow of, 166;
passage of the bill for the relief of the heirs of, 302;
supplementary bill for relief of heirs of, 383.
HEATH, JOHN, his testimony for the prosecution on the trial of
Judge Chase, 210.
HEISTER, JOSEPH, Representative from Pennsylvania 50, 285, 612.
_See_ _Index_, vol. 2.
HEISTER, DANIEL, Representative from Maryland, 51. _See_
_Index_, vol. 2.
HELMS, WILLIAM, Representative from New Jersey, 125, 287, 380,
497, 612. _See_ _Index_, vol. 2.
HILLHOUSE, JAMES, Senator from Connecticut, 3, 164, 345, 487,
550; urges reference to select committees of resolution,
relative to amendment of the constitution, 7; on amendments
to the constitution, 22; on choice of Vice President, 24, on
suspending intercourse with St. Domingo, 351; on expelling
Senator John Smith, 584; proposes sundry amendments to the
constitution, 607. _See_ _Index_, vols. 1 and 2.
HOGE, WILLIAM, Representative from Pennsylvania, 50, 613. _See_
_Index_, vol. 2.
HOLLAND, JAMES, Representative from North Carolina, 50, 285,
378, 493, 614; on postponing the resolution to inquire into
the official conduct of Judge Chase, 94; on the resolution to
inquire into the official conduct of Judge Chase, 110; on the
government of Louisiana, 147; on the application of the Society
of Harmony, 405; on the importation of slaves, 501; on the
appropriation to build gunboats, 517; on securing the privilege
of the Habeas Corpus, 532; on suspension of the embargo, 703.
_See_ _Index_, vol. 2.
HOLMES, DAVID, Representative from Virginia, 50, 285, 377, 493,
613. _See_ _Index_, vol. 2.
_Home Manufactures in House._--Resolution that the members
appear at the next meeting clothed in the manufactures of their
own country, considered, 710; could not enforce the resolution,
710; will appear in what clothing they choose, notwithstanding
the resolution, 710; intended to express the feelings of the
House, 710; a million of men wear broadcloth coats--a great
saving if manufactured in this country, 710; unfair that those
who have no wives at home to make their coats should not only
be reproached for their misfortune, but pointed at as sinners,
710; resolution withdrawn, 710.
HOPKINSON, ----, opens the argument for the defence on the
trial of Judge Chase, 236.
HOUGH, DAVID, Representative from New Hampshire, 50, 285, 377,
493.
HOUSE, meets on 1st session of Eighth Congress, 50; adjourns
at the close of first session of Eighth Congress, 162;
replication of, to the answer of Samuel Chase to the articles
of impeachment, 191.
HOWARD, BENJAMIN, Representative from Kentucky, 613.
HOWLAND, BENJAMIN, Senator from Rhode Island, 165, 485, 547.
HUGER, BENJAMIN, Representative from South Carolina, 51, 301;
in favor of augmentation of the Navy, 88; on postponing the
resolution to inquire into the official conduct of Judge Chase,
94; on a tax on imported slaves, 135, 138, 140; on the bill
relative to the Louisiana Territory, 144; on the increase
of specific duties, 158; against considering the resolution
for the retrocession of the District of Columbia, 161. _See_
_Index_, vol. 2.
HUMPHREY, REUBEN, Representative from New York, 612.
HUNT, MEMUCAN, petition of, 82.
HUNT, SAMUEL, Representative from New Hampshire, 50, 286. _See_
_Index_, vol. 2.
I
_Impeachment._--Rules of proceeding adopted by the Senate, on
the impeachment of Judge Chase, 175; list of witnesses on the,
191, 192.
_Importation of Slaves._--Petition of citizens of South
Carolina praying for relief for vessels that had sailed
previous to the passage of the act, 642; motion of reference
negatived, 642.
_Importation of Slaves_, resolutions of the Massachusetts
Legislature relative to, presented, 342.
_Importation of Slaves_, resolutions of Legislature of Maryland
relative to, 374.
_Importation of Slaves_, tax on. _See_ _Duties on Imports_;
also, _Index_, vol. 1; prohibition of, _see_ _Slaves_.
_Imports._--_See_ _Duties on Imports._
_Imprisonment for Debt._--_See_ _Index_, vol. 2.
_Indemnity for Spoliations._--_See_ _Index_, vol. 1; _Great
Britain_.
_Indian Lands within a State, rights over._--_See_ _Index_,
vol. 1.
_Indian Trading Houses._--_See_ _Index_, vol. 1.
_Indian Territory_, petitions relative to, referred, 383;
report of Committee on petition to admit Slavery in, 406.
INNES, JUDGE HARRY.--_In the House_, report on resolution to
inquire into the conduct of, considered, 707; no sufficient
grounds for impeachment appeared to the Committee--they
disposed to pursue the inquiry if other testimony could be
had, 707; commitment cause delay, 707; nothing gained by
recommitment, 708; bound to act on the subject this session,
708; moved to postpone, 708; evidence reviewed, 708.
J
Jackson, Andrew, petition of relative to army uniforms, 167.
_See_ _Index_, vol. 2.
JACKSON JAMES, Senator from Georgia, 6, 165, 348; urges
immediate action on resolution relative to amendments of the
constitution, 7; in favor of issuing stock for the purchase of
Louisiana, 11; against temporary removal of Seat of Government,
45; on removal of Seat of Government, 47; further remarks, 47;
on suspending intercourse with St. Domingo, 349, 350; decease
of, 372; resolutions in House relative to the decease of, 465;
_note_, 465. _See_ _Index_, vols. 1 and 2.
JACKSON, JOHN GEORGE, Representative from Virginia, 50,
285, 377; opposes a repeal of the Bankrupt Law, 79; on the
resolution to inquire into the official conduct of Judge Chase,
103; on the government of Louisiana, 147; on improving the
navigation of the Potomac, 294; on the Georgia claims, 326; on
the presentation of a sword to Gen. Eaton, 382; on discharging
the committee from the farther consideration of mutual rights,
393, 394; on importation of slaves, 401; on the application of
the Society of Harmony, 405, 406; on the payment of witnesses
on the trial of Chase, 410; on importations from Great Britain,
455; on securing the privilege of the Habeas Corpus, 527. _See_
_Index_, vols. 1 and 2.
_Jails of States._--_See_ _Index_, vol. 1.
JAY, SIR JAMES, report on petition of, 620; compensation asked
for a secret mode of communication useful in the Revolutionary
War, and may be again, 620; absurd to vote money for a thing
they did not and could not understand, 620; other objections,
620; resolution to purchase for the public benefit carried, 620.
JEFFERSON, THOMAS, Message at 1st session Eighth Congress,
5; 2d session, Eighth Congress, 164; elected President for a
second term, 168; inaugural address on his second inauguration
as President, 170; _note_, 170, do. 171; the operation of the
Government during his first term--_note_, 344. _See_ _Index_,
vols. 1 and 2.
JENKINS, ROBERT, Representative from Pennsylvania, 612.
JOHNSON, RICHARD M., Representative from Kentucky, 613; on
fortifications and gunboats, 637; on inquiry into the conduct
of Gen. Wilkinson, 646.
JONES, WALTER, Representative from Virginia, 50, 286, 379, 493,
613. _See_ _Index_, vol. 2.
JONES, GEORGE, Senator from Georgia, 547.
_Judges’ Federal_, _resolutions_ relative to the removal of,
341, 553.
_Judiciary System._--_See_ _Index_, vol. 2.
K
KEENAN, THOMAS, Representative from North Carolina, 378, 493,
613.
KELLY, JAMES, Representative from Pennsylvania, 378, 493, 612;
on a plurality of offices in the same person, 469.
KENNEDY, WILLIAM, Representative from North Carolina, 50, 285.
_Kentucky_, vote for President, 168.
KEY, PHILIP, continues the argument for the defence on the
trial of Judge Chase, 244; opens for the defence in the case
of John Smith, 555; against the adoption of the report of the
committee in the case of John Smith, 556. _See_ _Index_, vol. 1.
KEY, PHILIP B., Representative from Maryland, 613; on
fortifications and gunboats, 636; on suspension of the Embargo
Act, 691, 700.
KIRKPATRICK, WILLIAM, Representative from New York, 612.
KITCHEL, AARON, Senator from New Jersey, 345, 485, 547; on
British aggressions on our commerce, 359. _See_ _Index_, vol. 1
and 2.
KNIGHT, NEHEMIAH, Representative from Rhode Island, 50, 285,
377, 493, 612.
L
_Lake Superior_ copper lands. _See_ _Index_, vol. 2.
LAMBERT, JOHN, Representative from New Jersey, 377, 493, 612.
LANDAIS, CAPT. PETER, bill for the relief of, 370, 418.
_Land Warrants_, remarks relative to frauds in, 676.
_Lands, Western._--_See_ _Index_, vol. 1, _Public Lands_.
LARNED, SIMON, Representative from Massachusetts, 285.
LATTIMORE, WILLIAM, Delegate from Mississippi Territory, 51,
285, 378, 493.
LEA, JAMES, his testimony for the prosecution on the trial of
Judge Chase, 212.
LE CLERC, proclamation of, 361.
LEE, EDMUND J., his testimony for the defence on the trial
of Judge Chase, 224; further continues the argument for the
defence on the trial of Judge Chase, 248.
LEIB, MICHAEL, Representative from Pennsylvania, 50, 285, 377;
on the amendment of the resolution of inquiry into the official
conduct of Judge Chase, 97, 98; on a naval peace establishment,
143; on the bill relative to the Louisiana Territory, 144; on
a naval peace establishment, 402; on importations from Great
Britain, 459; on naval appropriations, 474. _See_ _Index_, vol.
2.
LEWIS & CLARKE, Expedition, Message of President on, 360; bill
making compensation to, 519, 542.
LEWIS, JOSEPH, jr., Representative from Virginia, 50, 285,
377, 493, 613; against considering the resolution for the
retrocession of the District of Columbia, 161; on the bill
to bridge the Potomac, 290, 298, 300; on a bridge across the
Potomac, 397.
LEWIS, THOMAS, Representative from Virginia, 50; election
contested, 85.
LEWIS, WILLIAM, his testimony on the impeachment of Judge Chase
before the Senate, 198.
_Library of Congress._--_See_ _Index_, vol. 2.
_Light-House Duties_ considered in the House, 86; foreign
nations levy money on our vessels which frequent their ports,
for the purpose of supporting their light-houses, 86; every
vessel that enters a British port averages four pence sterling
the ton for every light she may have passed inwards, or be
expected to pass outward, 86; charges at the port of London,
87; other English ports, 87; expense of American lights
defrayed entirely out of the Treasury, 87; light-house duty
moved, 87. _See_ _page_ 158, vol. 3.
_Limitation_, Acts of. _See_ _Index_, vol. 2.
LIVERMORE, EDWARD ST. LOE, Representative from Massachusetts,
628.
LIVINGSTON, HENRY W., Representative from New York, 50, 285,
379, 493.
LLOYD, EDWARD, Representative from Maryland, 494, 613; on the
importation of slaves, 501; on the appropriation to build
gunboats, 518.
LOGAN, GEORGE, Senator from Pennsylvania, 3, 163, 345, 485;
presents memorial of the American convention for promoting the
abolition of Slavery, 41; gives notice of a bill to prohibit
the clearance of vessels to St. Domingo, 168; on suspending
intercourse with St. Domingo, 349. _See_ _Index_, vol. 2.
_Louisiana_, boundaries of, 8; bill to authorize President to
take possession as passed, 9; _note_, 9; message relative to
transfer of, 40; erection of into two Territories, bill for
reported in the Senate, 39; further considered, 40, 41, 42, 43.
_Louisiana Treaty_, bill in the Senate to authorize the
creation of eleven millions of stock for the purpose of
carrying into effect the treaty with France, 9; question--shall
the bill pass, 9; three months after the delivery of
notifications to pay this money--where then is the necessity
for haste, 9; time enough when we find ourselves in possession
of the territory, 9; Spain considers herself injured, and
may not agree to the cession, even if she cannot prevent
it, 9; she considers that France violated the contract with
her, and therefore she is absolved, 9; if the money is to be
paid on the responsibility of the President, why put that
responsibility upon him, and cast it off from ourselves, 10;
why make him sole judge of the safe delivery, 10; doubtful
if the French prefect can peaceably give possession, 10; his
Spanish Majesty is hostile to it, and will the Spaniards
acquiesce? 10; important that we should have New Orleans, but
as to Louisiana, this new, immense, unbounded world, it cannot
be incorporated into the Union without an alteration of the
constitution, and will be the greatest curse that could befall
us, 10; if we own the province it would be settled by people
who would otherwise settle our present territory--thus removed
an immense distance, they will scarcely ever feel the rays of
the General Government, their affections become alienated, they
will view us as strangers, and form distinct interests, 10;
have territory enough, 10; dangers of its possession to us,
11; two acts necessary to be performed to carry the present
treaty into effect, 11; the French are to deliver possession,
and we to pay the money, 11; who shall judge if the French
faithfully comply with this agreement, 11; the bill authorizes
the President to receive the territory, but why delegate this
power to him? 11; Congress will be in session at the time of
the cession, if the French faithfully perform, then will be
the time to vote the money, 11; grounds to apprehend that the
French Government has not capacity to convey, 11; is not the
Spanish King’s proclamation and his orders to his officers to
deliver to France a title? 11; the question of consideration in
the treaty of St. Ildefonso is settled in the ninth article,
12; Spain will not venture a war with the United States, 12;
is this a Legislative or Executive business? 12; certainly the
latter, and authority should be vested in the President, 12;
the possession of the ceded territory is a condition precedent
to the payment of money, 12; none of the stock authorized by
this bill can be transferred until possession is given, 12;
this possession is defined in the bill, 12; the treaty violates
the constitution, and cannot be binding, 13; the President
and Senate are not competent to incorporate the inhabitants
of Louisiana as citizens of the United States, 13; assent of
each State necessary for the admission of a foreign country
as an associate in the Union, 13; the consent of each member
in a commercial house is necessary to admit a new member,
13; points of the title considered, 13; two objections have
been made to the treaty--first, the United States cannot
constitutionally acquire territory; second, the treaty
stipulates for the admission of a new State into the Union, a
stipulation which the treaty-making power cannot comply with,
14; these objections answered, 14; before the Confederation,
each State, as sovereign, possessed the right to acquire
territory--this is still retained, or has been surrendered to
the General Government, 14; the stipulation does not mean that
the inhabitants shall be erected into a State, 15.
This bill is designed to carry into effect the treaty
between France and the United States, 16; if the treaty is
unconstitutional we are not bound to carry it into effect, 16;
constitutionality of the treaty examined, 16; if the extent and
nature of the treaty-making power is undefined, there are modes
of ascertaining it, 16; these modes considered, 16; out of
order to re-discuss the merits of the treaty on the passage of
this bill, 16; none deny that it is incumbent upon the United
States to secure the uninterrupted use of the Mississippi, 17;
reasons for voting against the treaty examined, 17; objection
to making provision for carrying the treaty into effect arising
from the doubtfulness of obtaining complete possession,
considered, 18; constitutionality of the treaty examined, 18;
difference of views among the opponents of the bill, 19; bill
passed, 20.
_In the House._--Message from the President stating that
ratifications had been exchanged, and provision required for
carrying out the treaty, 52; motion to call for papers relative
to the treaty, 53; important to know distinctly what had been
obtained by the treaty, 53; important to know the relations
of Spain to Louisiana, 53; the terms of the treaty examined,
54; its stipulations can be fulfilled only by laws, 54;
opponents of this treaty have changed the ground they occupied
relative to the British Treaty, 54; statement illustrated,
54; the Spanish correspondence should not be called for, as
negotiations already pending with that country, 58; there is
no evidence that France has an incontestable title, 55; France
only cedes the title which she has, 55; the resolution is
opposed as inconsistent with former sentiments, as premature,
and as unnecessary, 55; if a majority entertained any doubt as
to the validity of the title, they should call for papers, 56;
resolution not confined to proper objects, 56; it contemplates
an inquiry into subjects totally unconnected with the treaty
with France, 56; what has Spain to do in this business? 56;
the Executive doubtless has the royal order of Spain to her
officers to deliver the province to France, 56; the right of
the House to call for papers is not doubted, 56; it is improper
to embarrass the business in its present stage by a call for
papers, 57; first member of the resolution agreed to, 57;
second member lost, 57; amended resolution lost, 57.
Motion for carrying the treaty into effect considered, 61;
where is to be found the constitutional power to incorporate
the inhabitants into the Union, with the privileges of
citizens? 61; if the treaty-making power is exceeded, it is a
duty not to carry it into effect, 61; the objections resolve
themselves into arguments against the constitutionality and
against the expediency of the treaty to be carried into
effect, 61; the capacity to acquire territory considered, 61;
it is denied that this acquisition has been made in a regular
way, 62; report made at a previous session, 62; tenor of the
present Administration, 63; better to have the ceded territory
on any terms than not to have it at all, 63; the French, 64;
immense consequence of the treaty, 65; the question must be
decided on the law of nations, 66; the expediency of the treaty
considered, 66; has any man shown a breach of the constitution?
67; objections to the resolution urged, 67; why let slip this
golden opportunity of acquiring New Orleans? 68; we have now
an opening for a free trade with New Orleans, 68; objections
examined, 68; it abolishes the discriminating duties of tonnage
for a term of years within the territory, giving a preference
to France and Spain, 68; similarity in principle of the British
Treaty, 70; this grant to France and Spain examined, 70;
resolutions reported by the committee and adopted, 72.
_Louisiana Cession_, in the Senate, bill to enable the
President to take possession of the territories ceded by France
to the United States, read second time and referred, 7; read
third time and passed, 8; _note_, 8; report of Committee of
Conference on the amendments of the House, 9; Senate recede, 9;
bill as passed, 9; _note_, 9.
In the House, the bill to enable the President to take
possession of Louisiana, from the Senate, considered, 72;
although this power necessary, there is no cause for giving
to the President the latitude as to time so extensive as that
proposed, 72; amendment limiting the time moved, 72; moved to
strike out the whole section to which the amendment applies,
73; explanation relative to the powers of the present officers
of the province required, 73; such a delegation of power
unconstitutional, 73; no objection can exist to the section
under the limitation proposed, 73; necessity for the United
States to take possession of the territory in the capacity
of sovereigns in the same extent as that of the existing
government, 73; no one can inform us what the powers proposed
to be given are, 74; the powers repugnant to the constitution,
74; the question is whether we shall take immediate possession
of this country or wait until we have time to form such a
government as will be most likely to make the people happy,
74; does the second section violate the constitution? 74;
we have purchased the country and made arrangements to pay,
and possession is to be taken, when objection is made to
the part of the statute authorizing the President to act,
74; the principle of the bill is sound, if some details are
objectionable, 75; this point further debated, 76; motion to
strike out lost, 77; bill passed, 77. _See_ _Index_, vol. 2.
_Louisiana Territory_, bill to erect and provide for the
government of, considered, in the House, 144; objection to
giving the Governor a right to prorogue the Legislative
Council, 144; also to giving the President power to appoint
the Legislative Council, 144; provision should be made for
the election of a legislative body by the people, 144; moved
that the committee rise, 144; important to proceed with the
bill immediately, 144; a small amendment will remedy the
section, 145; better to settle the point respecting the
Legislative Council, 145; the principle upon which the Council
is organized is the subject of consideration, 145; this form
of government is a new thing, but these people differ from the
citizens of the United States, 145; the approach of such a
people to liberty must be gradual, 145; other considerations
respecting the bill advanced, 145; moved to strike out the
fourth section of the bill, 146; the section establishes a
species of government unknown to the United States, 146; we
have three descriptions of government--that of the Union,
that of the States, and that of the Territories, 146; _note_,
146; these people will expect the same form of government
as their neighbors, 147; the simple question is, what kind
of government is most fitted to them? 147; one grade or the
other of the Territorial government the best, 147; the section
presents two important questions, 147; these questions stated
and considered, 147; no danger of giving this people too much
liberty, 147; a detestable calumny that man is not fitted
for freedom, 147; who can conceive the people of Louisiana,
having just thrown off their chains, as fitted to make laws?
147; this plan is superior to the first grade of Territorial
government, 148; the second grade better than that proposed
in the bill, 148; amendment proposed to fifth section, 152;
cannot establish courts in the Territory on any other terms
than in the States, 152; can be constituted only as courts of
the United States, 152; _note_, 152; amendment moved to inhibit
the admission of slaves into Louisiana, as well from the United
States as from foreign places, 157; agreed to, 157; other
amendments proposed and lost, 157; bill read a third time, 157;
various motions to recommit lost, 157; bill passed, 158. _See_
_Orleans, bill providing for government of the Territory of_,
vol. 3, p. 166.
_Louisiana, commerce of_, paper relative to sent to the House
with documents relative to General Wilkinson, 666.
_Louisiana, purchase of._--_See_ _Index_, vol. 2.
_Louisiana Lead Mines._--Resolution to authorize the President
to appoint an agent to obtain information relative to the
condition, occupancy, and title of, considered, 287; agents
already appointed to explore under a general authority of the
President, 287; resolution unnecessary, 288; object to inquire
into the occupancy and title of the present owners, 288; a
temporary measure, 288; might create dissatisfaction among the
people, 288; resolution carried, 288.
LOVE, JOHN, Representative from Virginia, 613; on inquiry into
the conduct of General Wilkinson, 652; on the suspension of the
embargo, 678.
LOWNDES, THOMAS, Representative from South Carolina, 286; on
the resolution to appoint a committee to inquire into the
official conduct of Judge Chase, 98; on a tax on imported
slaves, 129; on postponement of the bill laying a tax on
imported slaves, 140. _See_ _Index_, vol. 2.
LUCAS, JOHN B., Representative from Pennsylvania, 51, 286; on
a tax on imported slaves, 136; on the bill relative to the
Louisiana Territory, 146; on the appointment of an agent to
collect information relative to the Louisiana Lead Mines, 287;
on the Georgia claims, 322.
LYON, MATTHEW, Representative from Kentucky, 50, 384, 502, 614;
on the Georgia claims, 336; on inquiry into the conduct of Gen.
Wilkinson, 654. _See_ _Index_, vol. 2.
M
MACLAY, SAMUEL, Senator from Pennsylvania, 3, 165, 345, 485,
547. _See_ _Index_, vols. 1 and 2.
MACON, NATHANIEL, Representative from North Carolina, 50, 285,
378, 493; chosen Speaker of the House, 51; address, 51; on the
resolution relative to public roads, 84; on a tax on imported
slaves, 132; on the bill relative to the Louisiana territory,
146; on improving the navigation of the Potomac, 297, 298, 301;
chosen Speaker first session 9th Congress, 346; returns thanks
to the House, 378; on laying a tax on imported slaves, 389; on
the payment of witnesses on the trial of Chase, 410; on the
application of the Society of Harmony, 405; on importations
from Great Britain, 445; on the importation of slaves, 499;
makes his acknowledgments as Speaker to the House, 546; on
fortifications and gunboats, 638; on inquiry into the conduct
of Gen. Wilkinson, 646; on home manufactures, 710. _See_
_Index_, vols. 1 and 2.
MAGRUDER, PATRICK, Representative from Maryland, 377, 493;
elected Clerk of the House, 613.
_Mail routes proposed_ by Post-office Committee, 85.
_Manhattan Company_, petition of President and Directors, 497.
MARSHALL, JOHN, his testimony for the defence on the trial of
Judge Chase, 222. _See_ _Index_, vol. 2.
MARSHALL, WILLIAM, his testimony for the defence on the trial
of Judge Chase, 219.
MARTIN, LUTHER, his testimony for the defence on the trial
of Judge Chase, 218; further continues the argument for the
defence on the trial of Judge Chase, 250.
MARION, ROBERT, Representative from South Carolina, 378, 493,
613; on the importation of slaves, 386, 641; on compensating
Capt. Pike, 676; on suspending the act of non-importation, 709.
_Maryland_, vote for President, 168.
MASON, JOHN THOMPSON, his testimony for the prosecution on the
trial of Judge Chase, 209.
MASON, STEVENS T., resolution of Senate on decease of, 9;
_note_, 9.
_Massachusetts_, vote for President, 168.
MASTERS, JOSIAH, Representative from New York, 377, 494, 612;
on importations from Great Britain, 434; on building gunboats,
627; on the importation of slaves, 641; on suspension of the
embargo act, 686.
MATHEWSON, ELISHA, Senator from Rhode Island, 551.
MCCORD, ANDREW, Representative from New York, 50, 285.
MCCORMICK, Rev. Mr., elected Chaplain of the Senate, 163.
MCCREERY, WILLIAM, Representative from Maryland, 50, 285, 377,
493, 613; on the Society of Harmony, 404, 405.
MCFARLAND, DUNCAN, Representative from North Carolina, 402, 493.
MCMECHIN, WILLIAM, his testimony for the defence on the trial
of Judge Chase, 228.
MEAD, COWLES, Representative from Georgia, 378.
_Mediterranean trade._--_See_ _Index_, vol. 2.
MEREDITH, WILLIAM, his testimony for the defence on the trial
of Judge Chase, 217.
MERIWETHER, DANIEL, Representative from Georgia, 51, 285, 378,
493.
_Message_ of President Jefferson at first session of eighth
Congress, 4; _note_ on, 4; on the cession of Louisiana to the
United States, 6; relative to the capture of an armed ship
of the Emperor of Morocco, 20; from President Jefferson to
Senate on Tripolitan aggression, 37; relative to the contingent
fund, 39; of President Jefferson to Senate relative to taking
possession of Louisiana, 40; of President Jefferson relative
to the wreck and capture of the frigate Philadelphia, 48; of
President Jefferson to the House on the cession of Louisiana,
52; from the Senate to the House, relative to adjournment, 162;
from the Senate to the House, announcing the passage of sundry
bills, 162; of President Jefferson to second session of eighth
Congress, 164; from the President relative to the Tripolitan
war, 168; from President Jefferson to first session of ninth
Congress, 346; from the President on the ex-Bashaw of Tripoli,
351; on Spanish and French spoliations, 348; from the President
on the aggressions on commerce, 353; of the President on Lewis
and Clarke’s expedition, 360; from the President on the demand
and threat of Tunis, 375; of President Jefferson at second
session of ninth Congress, 486; _note_, 487; relative to Burr’s
conspiracy, 488, 490, 491; of President Jefferson, calling
an extra session of Congress, 547; of President Jefferson to
first session of tenth Congress, 548; from the President,
recommending an embargo, 551; from the President, relative
to the contingent fund, 552; relative to the impressment of
seamen, 554; of President Jefferson, recommending an embargo,
640; with documents relative to Gen. Wilkinson, 663.
_Militia, the_, in the House, bill to authorize a detachment
from militia of the United States read third time in the House,
392; a bill of no trifling import, 392; to equip a force of one
hundred thousand men at an expense of two millions of dollars,
392; what special objects are to be answered by the bill? 392;
what effect will it have on the militia systems of the States?
392; only selected, officered, equipped, and ordered to be in
readiness, 392; objection on the score of pay considered, 393;
other reasons for the passage of the bill, 393; bill passed,
393; the bill more effectually to provide for the national
defence by the militia of the United States, considered, 659;
sect. one considered, 659; defects in the present law, 659; the
system proposed better than the old, 659; subject uniformly
recommended by each successive President, 659; also State
executives, 659; object to take only those who can best be
spared from home, and can be most relied on, 660; leave at home
the senior and minor classes as much as possible, 660; three
points of attack, and young men enough under twenty-six and
over twenty-one to keep up a continual force, 660; what shall
be done with the minor class? 660; numbers of each class, as
near as can be ascertained from the census, 660; volunteers
not to be relied on, 661; mode of officering, 662; reward of
services, 662; other particulars stated, 663; _note_, 663.
_Military Academy._--_See_ _Index_, vol. 2.
MILLEDGE, JOHN, Senator from Georgia, 487, 547. _See_ _Index_,
vols. 1 and 2.
MILNOR, WILLIAM, Representative from Pennsylvania, 612; on
building gunboats, 625.
_Mint, establishment of._--_See_ _Index_, vols. 1 and 2.
MIRO, letter of, respecting settlement of Louisiana, 665.
_Mississippi Question_, on free navigation of. _See_ _Index_,
vol. 2.
_Mississippi Territory_, memorial of House of Representatives
of, 85, 315.
MITCHELL, NAHUM, Representative from Massachusetts, 50, 285.
MITCHILL, SAMUEL L., Representative from New York, 50, 285;
Senator from New York, 165, 345, 485, 547; on the call for
papers relative to the Louisiana treaty, 56; advocates the
resolution to carry the Louisiana treaty into effect, 68;
on the bill authorizing the President to take possession of
the Louisiana territory, 74; remarks on the road to Natchez
and New Orleans, 78; on light house duties, 86; on a tax on
imported slaves, 133; on the appointment of an agent to collect
information on the Louisiana lead mines, 287; on suspending
intercourse with St. Domingo, 350. _See_ _Index_, vol. 2.
MONTGOMERY, DANIEL, jr., Representative from Pennsylvania, 612.
MONTGOMERY, JOHN, his testimony for the prosecution on the
trial of Judge Chase, 213; representative from Maryland, 613;
on compensating Capt. Pike, 676.
MOORE, ANDREW, Representative from Virginia, 50.
MOORE, ANDREW, petition of, 78.
MOORE, ANDREW, Senator from Virginia, 163, 349, 487, 550. _See_
_Index_, vol. 2.
MOORE, NICHOLAS R., Representative from Maryland, 50, 285, 377,
493, 613.
MOORE, SAMUEL, his testimony for the defence on the trial of
Judge Chase, 226.
MOORE, THOMAS, Representative from South Carolina, 51, 286,
378, 493, 613; on a tax on imported slaves, 135. _See_ _Index_,
vol. 2.
MORROW, JEREMIAH, Representative from Ohio, 51, 285, 378, 493,
613; on the resolution relative to public roads, 84; on the
application of the Society of Harmony, 406.
MORROW, JOHN, Representative from Virginia, 377, 493, 613.
MOSELY, JONATHAN A., Representative from Connecticut, 377, 493,
612; on the importation of slaves, 500.
MOTT JAMES, Representative from New Jersey, 286; on the
postponement of the resolution to inquire into the official
conduct of Judge Chase, 94. _See_ _Index_, vol. 2.
MUMFORD, GURDON S., Representative from New York, 377,
497, 614; on importations from Great Britain, 460; on the
appropriation to build gunboats, 516, 518.
N
_National University._--_See_ _Index_, vol. 2.
_Naturalization laws_, resolution relative to, 659. _See_
_Index_, vols. 1 and 2.
_Naval Peace Establishment_, bill in House considered, 143;
object a more economical arrangement for national ships laid up
in ordinary, 143; moved to abolish the office of Lieut. Col.
Commandant of the Marine Corps, and to authorize the President
to make other reductions, 143; amendment agreed to, 143; other
amendments adopted, and bill ordered to third reading, 143;
Senate adhere to their amendment, 162; House recedes, 162; bill
submitted to the House, 385; provisions explained, 402; further
debate, 402.
_Naval Establishment._--_See_ _Index_, vols. 1 and 2.
_Naval Appropriations_, bill making for 1805 considered, 312;
amendments proposed, 312.
_Navy, increase of_, considered in the House, 87; no necessity
exists for an augmentation of the navy, 87; numerous facts
stated to prove this point, 87; the bill has received the
sanction of the Senate--they must have had satisfactory proof
of its necessity, 88; this point examined, 88; bill referred
to the Committee on Commerce and Manufactures, 88; resolution
to provide for expenses in repairing ships at one of the navy
yards on Atlantic coast considered, 314; some yard nearer to
the ocean than at Washington needed, 315; resolution referred,
315.
_Navy_, letter from Secretary of, 396.
_Negroes, kidnapping of._--_See_ _Index_, vol. 2.
NELSON, JEREMIAH, Representative from Massachusetts, 377, 493.
NELSON, ROGER, Representative from Maryland, 286, 384, 493,
613; on improving the navigation of the Potomac, 291, 293,
298, 299; the retrocession of the District of Columbia 308; on
the reference of the letter of the Postmaster-General, 333,
335; on a plurality of offices in the same person, 470; on the
suspension of the habeas corpus, 509; on suspension of the act
of non-importation, 709.
_Neutral Rights_, in House, President’s message relating to
the invasion of neutral rights by some of the belligerents
considered, 393; motion to discharge the Committee of Ways
and Means, 393; no avail to make declarations of what is
the law of nations on the floor of the House, 393; that was
the place for measures to prevent the infraction, 393; the
reference should have been to the Committee of the Whole,
394; the eyes of America and Europe are looking with anxiety
to our proceedings on this subject, 394; subject should not
have gone to a standing committee, 394; the reference was made
six weeks ago, and we have no report yet, 394; the subject as
interesting as any since the establishment of the Government,
394; the memorials have been referred to the Committee of the
Whole, 394; motion to discharge committee agreed to, 395;
proceedings of the Committee of Ways and Means, 396; letter to
the Secretary of State, 396; reply, 396; papers referred to
Committee of the Whole, 396.
NEW, ANTHONY, Representative from Virginia, 50, 285. _See_
_Index_, vols. 1 and 2.
NEWBOLD, THOMAS, Representative from New Jersey, 612.
_New Hampshire_, vote for President and Vice President, 168.
_New Jersey_, vote for President, 168.
_Newspapers_, postage on considered, 78. _See_ _Postage on
Newspapers_.
NEWTON, THOMAS, Jr., Representative from Virginia, 50, 285,
378, 493, 613; advocates repeal of the bankrupt law, 79; on
securing the privilege of the habeas corpus, 538; on building
gunboats, 627; on suspension of the act of non-importation,
709. _See_ _Index_, vol. 2.
_New York_, vote for President, 168.
NICHOLAS, WILSON CAREY, Senator from Virginia, 3; opposes
motion to strike out all relative to Vice President in report
on amendments to the constitution, 8; for the issue of stock
for the purchase of Louisiana, 19; moves an amendment to the
report on amendments to the constitution, 21; on the amendment
to the constitution relative to election of President, 24;
resigns, 163. _See_ _Index_, vol. 2.
NICHOLAS, PHILIP N., his testimony for the prosecution on the
trial of Judge Chase, 207.
NICHOLSON, JOSEPH H., Representative from Maryland, 50, 286,
377; on the call for papers relative to the Louisiana treaty,
56; on the bill to authorize the President to take possession
of the Louisiana territory, 74; in favor of augmentation of the
navy, 88; on the resolution to appoint a committee to inquire
into the official conduct of Judge Chase, 118; on the amendment
to the resolution of inquiry into the official conduct of Judge
Chase, 98; further remarks, 105; on protection against the
Barbary powers, 160; replies to the argument for the defence
on the trial of Judge Chase, 261; on improving the navigation
of the Potomac, 294; on the reference of the letter of the
Postmaster General, 333; on importations from Great Britain,
402; on the application of the Society of Harmony, 407; on
incorporating a church in Georgetown, 408; on the payment of
witnesses on the trial of Chase, 411; on importation from Great
Britain, 444. _See_ _Index_, vol. 2.
_Non Importation of British Goods._--Resolutions relative to
offered in the House, 395; property of our citizens has been
seized by foreign cruisers--cargoes condemned, seamen impressed
and held in bondage, 395; better to have interdicted all
commercial intercourse with Great Britain, 395; resolutions
referred to Committee of the Whole, 395; resolutions calling
for information adopted, 399; other resolutions relating to
intercourse with the belligerents offered and referred to
Committee of the Whole, 400; amount of importations from Great
Britain yearly, 402; effect on the revenue to prohibit this
trade, 402; effects of prohibition of cotton goods, 402; other
resolutions introduced and referred, 403. Resolutions read,
419; extent of the depredations, 419; no reason to expect an
accommodation with Great Britain until we resort to measures,
and will make her feel the loss of our market, 419; history
of the late conduct of Great Britain, 419; interposition of
Government demanded, 420; the capture and condemnation of
our vessels, 420; have reached a period at which the honor,
the interest, and the public sentiment of the country call
loudly on us to make a stand, 421; what are the proper steps
to be taken 421; purport of the resolution, 421; this is
their vulnerable part, 421; by stopping the importation of
British goods and continuing our exports to that country large
debts will become due from British merchants to American
citizens, 421; the balance of injury will be against us, 421;
one hundred millions of American property at the mercy of
British cruisers, 421; would it be politic to expose so much
property to the retaliation of British ministers? 422; balance
of trade against us with Great Britain, is eleven to twelve
millions, 422; this measure will injure Great Britain vastly
more than it will us, 422; captures by her may amount to six
millions, 422; but if it did not exceed one we are bound to
protect our merchants, 422; we should have the advantage in a
war, 422; but a war will not follow this resolution, 422; a
similar principle has been adopted by Great Britain in regard
to the Colonial trade, 422; impressment, too, is a subject
of most serious complaint, 422; this resolution is defended
on principles which would justify none but war measures, 423;
three points to be maturely considered--first, our ability to
contend with Great Britain for the question in dispute--second,
the policy of such a contest--and third, the manner in which
we can with the greatest effect react upon and annoy our
adversary, 423; what is the question in dispute--the carrying
trade--that portion which covers enemy’s property and carries
the West India products to the mother country, 424; the policy
of such a contest examined, 425; _note_, 425; our Government
not framed for offensive war, 425; come out of it without a
constitution, 425; never go to war but in self-defence, 425;
what is this war for but the carrying trade, and you already
possess seven-eighths of it, 426; would you jeopardize your
best interests for a circuitous commerce for the fraudulent
protection of belligerent property under your neutral flag,
426; it is said you ought to go to war for the fur trade,
426; the period of 1793 stated, 426; what has been done
this session, 427; Britain is your rival in trade, you will
sacrifice the paramount interests of the country to wound her;
for Spain and France you are carriers, and from them every
indignity is to be endured, 427; whence comes this resolution,
427; there is no cabinet, no system, no plan, 428; free ships
make free goods, 428; the charge of being willing to surrender
important rights to a foreign government, 428; never be
instrumental to the ambitious schemes of Bonaparte, 429; the
object of attack is that very navy which in 1798 stood between
you and danger, 429; get rid of the public debt and you may put
the world at defiance, 430; can you expect England to yield to
you what she will not give up for Russia, 430; the existence of
her navy secures your possession of New Orleans, and yet you
are for a British naval war, 430; only two commercial nations,
431; it is said England will not go to war--Holland thought the
same thing in 1781, 431; character of the inhabitants of the
southern country on whom you rely for support, 431; the magic
of words, 431; the statesmen and the counting-house clerk,
432; men of no nerve oppose this resolution, 432; no plan on
the part of the government, 432; this subject calls for the
display of all the knowledge and experience of commercial men
and statesmen, 433; object of the resolution is the protection
of the active commerce of the country, 433; first inquiry
is whether this commerce is so important as to require our
protection, 433; this point examined, 433; the government
long since pledged to support the rights and interests of our
merchants upon the ocean, 434; too late to retrace our steps,
434; treachery to the mercantile interest, 434; insults and
aggressions of Great Britain not denied, but the resolution
not the best course to proceed, 434; two causes of restraints
and prohibitions between nations, 434; protection to home
industry and national animosity, 435; the last occasions this
resolution, 435; in case of a war what will be the situation
of your carrying trade, 435; ought commerce to be considered
as beneficial in its relation to the United States, 435; this
point examined, 435; the right of commerce to protection under
the constitution, 435; our rights are invaded and an attack
made upon our carrying trade, which cannot be warranted by
the law of nations, 436; it is said this is a war measure,
436; objections considered, 437; impressment of seamen, 438;
these seamen made to fight against France, our ally, if we
connive at it we may be charged with a breach of neutrality,
438; aggressions on our commerce, 439; the merits of the
question, 439; must the agricultural interest of the country
be sacrificed to preserve the carrying trade, 440; should the
present prosperous state of things be put to risk, 440; can
we as men and patriots tamely submit to these aggressions,
440; the resolution is devoted to destruction, 440; never was
a more interesting crisis in our affairs in reference to our
foreign relations, 440; two classes of arguments against the
motion--one addressed to our hopes, the other to our fears,
440; these considered, 440; has there been as much pains taken
to apprise the nation of its true position as there has been
to alarm it, 441; what is the true cause of our dispute with
Great Britain, and what is the extent to which it goes, 441;
this measure involves the best interests of our country, 442;
the subject considered relatively to its general policy, and
whether we are bound to adopt the resolution, 442; objects
of the federal compact, 442; the resolution will produce
instantaneous war, 442; effect on Great Britain, 442; objects
of a free government, 443; unless it fulfils its objects it
is not worthy of support, 443; grounds of difference already
stated, 443; not able to meet Great Britain on the ocean, 443;
we say, be just or we will hold no intercourse with you, 443;
the resolution objectionable in all its parts, 444; it embraces
two points--one relating to the carrying trade, the other to
the impressment of seamen, 444; previous consideration of
the subject of impressment, 444; impressment has been going
on for ten or twelve years and no memorials come from these
patriotic merchants, 444; it is the carrying trade alone
which has brought them, because their interests are affected,
444; this an object of secondary importance, 445; effects of
adopting the resolution, 445; resolution of 1793 compared,
445; two alternatives before this nation, 445; the dispute is
most unquestionably for the carrying trade, 446; a trade less
beneficial to the nation than any other, and the cause of most
of our disputes with foreign nations, 446; not so important
as the coasting trade, or the direct trade, 446; our conduct
towards France and its effects, 446; particulars respecting our
trade, 446; British merchants and manufacturers will aid us
under this measure, 447; the adoption of the resolution will
affect the revenue, 447; question of expediency, 447; partial
operation of the resolution, 447; impressment considered,
448; arguments for the resolution founded on impressment,
examined, 448; adopt this measure and you may overthrow our
administration, 449; it is said, now is the time to settle our
disputes with England, 449; evidences of the spirit of the
nation, 450; the ocean common and undivided property, hence
difficult to afford the same security as on land, 450; the case
of Tripoli said to be in point, 450; is this the best course,
450; better if the government had never given protection to
commerce out of sight of our territory, 451; the grounds of
complaint considered, 452; impressment, 452; aggressions on
commerce, 453; the right of Great Britain to seize and condemn
colonial produce, the property of a neutral, on its way to the
ports of a parent state, her enemy, examined, 453; this measure
only a commercial regulation and cannot give any cause for war,
454; no animosity to occasion the resolution, 455; the conduct
of Great Britain is manifestly unjust and unauthorized by the
law of nations, 455; a review of the points in discussion
between this country and Great Britain, and the arguments of
the opponents of the resolution examined, 455; aggressions of
Great Britain a sufficient stimulus for us to do something,
458; law requiring protections for seamen regretted--the flag
should protect, 458; motion to discharge the Committee of
the Whole from the further consideration of the resolution,
459; no discussion of its merits had, 459; motion lost, 459;
painful to see gentlemen so far forget the interests of their
own country in defending the pretended of rights of others,
460; facts relating to impressments, 460; property of foreign
nations covered by American merchants, 460; vindication of the
character of American merchants, 461; true history and cause
of the British aggressions, 461; difference between our treaty
with Great Britain and other nations, 462; the just cause of
complaint being admitted, it remains to determine whether
we will tamely submit, 462; only difference relates to the
question what measures will have the most effect with the least
injury to ourselves, 462; where is the remedy, 463; is peace
to be destroyed until indemnity and security can be obtained,
463; other arguments considered, 463; motion that the committee
rise, 464; opposed, 464; lost, 464; a resolution adopted, 465;
bill read third time, 466; passed, 466. _In the House_, motion
to postpone the bill authorizing the President to suspend the
non-importation law under certain contingencies, 709; in the
event of suspending the embargo, it may be proper to suspend
this law, 709; the law should be a permanent regulation, 709;
have a right to make all regulations we please, respecting
commerce, 709; what cause for suspending at present, 709;
postponement carried, 709.
_North Carolina_, vote for President, 168.
O
_Oath_, administered to members of House at 1st session, Eighth
Congress, 51.
_Oaths._--_See_ _Index_, vol. 1.
_Officers, removal of._--_See_ _Index_, vol. 1.
_Officers, plurality of._--Resolutions declaring that a
contractor is an officer of government, and incapable of
holding a seat in the House, and that the union of a plurality
of offices in a single individual, especially military with
civil authority, is repugnant to the constitution, &c.,
considered in the House, 466; no such principle in the
constitution, as is prescribed in first resolution, 466;
no right to make a disqualification which the constitution
does not attach to the tenure of a seat, 466; each House
shall be the judge of the qualifications of its members,
467; the resolution an exposition of the constitution, 467;
meaning of the word “officer,” 467; subsequent Houses may
give the constitution a different construction, 467; every
objection which can be made to a member applies with equal
force to his holding a lucrative contract, 467; words of the
constitution, 467; cannot be justified in declaring what is
and what is not the constitution, 468; adopt this resolution,
and a bare majority might deprive a member of a seat, 468; no
power to exclude members from a seat, unless it is found in
the constitution, 468; what is the idea of an officer under
the constitution, 468; is a contractor an officer under the
constitution, 469; the only question is, whether there was an
existing disqualification, 469; a contract cannot be considered
in the light of an office, 469; officer and contractor do not
mean the same thing, 469; not in the power of the House to
declare the two appointments incompatible, unless expressly
authorized in the constitution, 470; allusion to cases, 470;
resolution not agreed to, 470; second resolution considered,
471; declaration of the resolution not correct, 471;
constitution recognizes union of civil and military offices,
471; the union here contemplated, gives the actual discharge
of civil powers to a person in command of the army, 471; is
there no spirit in the constitution, 471; a union of different
offices in the same person not repugnant to the constitution,
472; what benefit will result from this declaration, 472; what
does the resolution amount to, 472; resolution goes too far;
it is very common for two offices to be united in one man,
472; union necessary in some cases, 472; resolution not agreed
to, 473; third resolution considered, 473; adopted, 473; bill
presented, 473; bill prohibiting military and naval officers
from civil employment, read third time, 476; the bill goes to
the unconstitutional removal of an officer, 476; have we a
right by a legislative act to prejudice any other department
of the Government, 476; strongest argument in favor of the
expediency of the bill, 476; what is constitutional 477; let
us not interfere with the constitutional rights of the other
departments, 477; bill passed, 478.
_Ohio_, vote for President, 168.
_Ohio State Government._--_See_ _Index_, vol. 2.
OLCOTT, SIMEON, Senator from New Hampshire, 3, 163. _See_
_Index_, vol. 2.
OLIN, GIDEON, Representative from Vermont, 50, 285, 377, 493;
on the application of the Society of Harmony, 404, 405; on the
importation of slaves, 501; on excluding settlers from the
public lands, 543.
_Ordinance of 1787, respecting slavery_; resolutions of Indiana
Council, relative to suspension of, 503; report on, 519.
_Orleans_, bill for the government of the territory of, 166.
P
PAINE, THOMAS, address to the Senate, stating his claim, 552.
PALMER, BERIAH, Representative from New York, 50, 285.
PARKE, BENJAMIN, delegate from Indiana Territory, 381, 497.
PARKER, NAHUM, Senator from New Hampshire, 547.
PARKINSON, REV. WILLIAM, elected chaplain of the House, 52.
PATTERSON, JOHN, Representative from New York, 52.
PENDLETON, EDMUND, resolution relative to the death of, 77.
_Pennsylvania Insurgents._--_See_ _Index_, vol. 1.
_Pennsylvania_, vote for President, 168; resolutions of
legislature relative to removal of Federal judges, 676.
PETERS, RICHARD, Judge, committee appointed by the House to
inquire into his official conduct, 174.
_Petitions_, reception of, _see_ _Index_, vol. 2, and _Index_,
vol. 1, _Slavery_.
PHELPS, OLIVER, Representative from New York, 78, 315.
PICKERING, TIMOTHY, Senator from Massachusetts, 3, 163, 345,
485, 547; on the acquisition of Louisiana, 13; on the amendment
to the constitution, relative to the election of President, 27.
_See_ _Index_, vol. 2.
PIKE, CAPT., resolution to compensate, 676.
PITKIN, TIMOTHY, jun., Representative from Connecticut,
380, 493, 612; on the importation of slaves, 496; on the
appropriation to build gunboats, 517.
PLATER, THOMAS, Representative from Maryland, 50, 285. _See_
_Index_, vol. 2.
PLUMER, WILLIAM, Senator from New Hampshire, 3, 163, 345, 485;
on the amendments to the constitution, relative to the election
of President, 29. _See_ _Index_, vol. 2.
POINDEXTER, GEORGE, Delegate from Mississippi Territory, 613.
POLK, WILLIAM, petition of referred, 82.
POPE, JOHN, Senator from Kentucky, 547; on expelling Senator
John Smith, 602.
PORTER, JOHN, Representative from Pennsylvania, 612.
_Postage of Newspapers considered in House_, 78; it affects
the means of acquiring political information in the different
parts of the Union, 78; should be transported free of postage,
78; Post Office establishment never intended as a paramount
source of revenue, 78; resolution moved to repeal postage on
newspapers, 79.
_Post Office Committee_, report of to the House, 85; amendments
discussed, 86.
_Post Office._--_See_ _Index_, vol. 1.
_Post Roads in States._--Act relative to, in Senate, 45.
_Post Roads_, passage of the bill relative to, 342.
_Potomac River._--Bill to authorize the corporation of
Georgetown to make a dam or causeway from Mason’s Island to
the western shore of the Potomac, 290; motion to strike out
the first section, 290; Congress no right to pass the law
in question, 290; the tax authorized would be unequal and
oppressive, 290; House should legislate, or relinquish the
claim to jurisdiction, and authorize themselves, or retrocede
to Virginia, 290; no opposition out of the House, 290; no
injury done by it, 290; applicants should give notice of their
intention by previous publication, 290; effects of the measure
on the navigation, 291; moved committee rise, 291; opposed as
it effects nothing, 291; where is the proof it will do no harm?
291; compact between Maryland and Virginia, 291; tendency to
improve the navigation, 291; applications from the inhabitants
of the district should be noticed, 292; further time desirable,
292; committee rose, 292; asked leave to sit again, 292; act of
cession by Virginia read, 292; neither Maryland nor Virginia
have ceded their joint rights to this river, 292; any thing
done respecting the navigation must be by their joint act, 292;
the constitution gives Congress exclusive jurisdiction over
ten miles square, 292; the jurisdiction of the Potomac ceded
by Virginia and Maryland, 292; if Congress has no jurisdiction
over the Potomac, it has none over the district, 293; does
Congress possess exclusive jurisdiction of the Potomac, is the
question, 293; could Maryland give it? she had only a qualified
right, so Virginia, 293; each had concurrent jurisdiction, 293;
a deed to exclusive property by certain metes and bounds, would
not pass a joint interest in other property not contained in
those bounds, 293; where is the conveyance by which Virginia
has relinquished her concurrent jurisdiction? 293; power of
Congress to pass the bill, examined, 293; compact between
Maryland and Virginia explained, 293; illustration of passing
joint property with exclusive jurisdiction, 293; stipulations
between Maryland and Virginia, 294; two States uniting makes
the grant complete, 294; Virginia never passed the right of way
purchased of Maryland, and Maryland had it not to convey--how
could the United States have acquired it? 294; case of the
cession of Louisiana, 294; was the jurisdiction of the Potomac
ceded to Congress? 294; improper to take up the subject as
there is a motion to retrocede the district, 297; determination
on the part of the people of the district to give Congress as
much trouble as possible, 298; immediate exertions required to
prevent the channel from being filled up, 298; propriety of
adopting the resolution to retrocede, 298; alterations in the
bed of the river, 298; further reasons to show that Congress
does not possess the power of legislating on the subject, 299;
further reasons on the opposite side, 299; this reasoning
examined, 299; it is intended to stop one channel in order
to deepen the other, 300; further remarks on the rights of
Congress, 300; further debate, 301; motion to strike out first
section lost, 301; third reading of the bill, 301; this bill
effects the interest and wantonly violates the right of one of
the States, 301; two methods of construing the constitution,
302; the Legislatures of the two States never could have
intended a cession of the jurisdiction, 302; passage of the
bill, 302--Postponement passed in the Senate, 374.
_Bridge across the Potomac_, in the House, resolution to
authorize the erection of, considered, 397; will the erection
of the contemplated bridge injure the navigation of the
Potomac? 397; reasons and objections of the anti-memorialists
examined, 397; the inconvenience to vessels examined, 397;
other objections of the counter-memorialists examined, 398;
resolution carried, 398.
POTTER, SAMUEL J., Senator from Rhode Island, 3; deceased, 165.
PREBLE, COMMODORE, motion in Senate relative to, 168;
resolutions relative to, 343.
_Presents to Ministers._--_See_ _Index_, vol. 2.
_Presidency, Vacancy in._--_See_ _Index_, vol. 1.
_Proclamation_ of President Jefferson interdicting harbors and
waters to British armed vessels, 619.
_Protective Duties._--_See_ _Index_, vol. 1.
_Public Lands_, bill from Senate to prevent settlement of,
until authorized, considered in the House, 543; postponement
moved, as too late in the session to do justice to the subject,
543; the bill declares the rights of all settlers forfeited,
and thus destroys the constitutional rights of those who had
existing rights, 543; an invasion of the rights of the States,
543; propriety of the bill justified by the necessities of the
case, 543; shall the public lands be given up to intruders,
543; the bill destroys the right of asserting a claim to
property, 544; other objections urged, 544; the very defects
are a reason why the bill should not be postponed, 544;
postponement lost, 544; moved to strike out first section,
lost, 544; bill passed, 545. _See_ _Index_, vol. 1.
_Public Roads._--_See_ _Roads, Public_.
PUGH, JOHN, Representative from Pennsylvania, 377, 493, 612.
PURVIANCE, SAMUEL D., Representative from North Carolina, 51,
286; in favor of the resolution to carry the Louisiana treaty
into effect, 63.
Q
_Quakers._--Memorial on slavery in the Territories, 313. _See_
_Index_, vols. 1 and 2.
QUINCY, JOSIAH, Representative from Massachusetts, 377, 493,
612; on the presentation of a sword to General Eaton, 382,
383; on the bill to authorize a detachment from the militia of
the United States, 393; on the importation of slaves, 401; on
incorporating a church in Georgetown, 408; on a plurality of
offices in the same person, 471; on the exclusion of military
and naval officers from civil employment, 476; against a
repeal of the duty on salt, 479, 480; on the importation of
slaves, 495, 498; on reference of the petition of the Manhattan
Company, 497; on securing the privilege of the habeas corpus,
537; on post roads, 542; on the settlement of the public
lands, 543, 544; on inquiring into the cause of the attack on
the frigate Chesapeake, 614; on British aggressions, 617; on
granting relief to the soldiers of the Revolution, 623, 624; on
building gunboats, 628, 639; on the suspension of the embargo,
696.
R
RANDOLPH, DAVID M., his testimony for the defence on the trial
of Judge Chase, 221.
RANDOLPH, JOHN, Representative from Virginia, 50, 285, 378,
493, 613; remarks on the death of Samuel Adams, 52; against the
resolution to call upon the President for documents relative
to the acquisition of Louisiana, 54; moves that the committee
rise on the debate relative to amendment of the constitution,
60; advocates the resolution to carry the Louisiana treaty
into effect, 61, 70; remarks on the bill to authorize the
President to take possession of the Louisiana territory, 72;
further remarks, 73; advocates a repeal of the bankrupt law,
79; on the resolution relative to public roads, 83; opposes
augmentation of the navy, 87; offers a resolution to inquire
into the official conduct of Judge Chase, 88, 89; further
remarks, 91; on the importance of the inquiry into the official
conduct of Judge Chase, 95, 97, 112; on the Georgia claims,
142, 148, 149, 150; reports on the impeachment of Judge Chase,
161; appointed to impeach Judge Chase at the bar of the Senate,
174; opens the case of the impeachment of Judge Chase, 192;
closes the reply to the argument of the defence on the trial
of Judge Chase, 274; informs the House of the deficiency in
the appropriation to carry out the seventh article of the
British treaty, 287; on the remission of duties on books,
289; against bridging the Potomac, 290, 292, 293, 299; on the
duty on salt, 297; on the resolution relative to the Georgia
claims, 315, 316; on the Georgia claims, 317, 330; presents a
bill relative to French spoliations, 380; on proceedings of
Committee of Ways and Means relative to the subject of neutral
rights, 396; against postponing the resolution for amending the
constitution relative to the removal of federal judges, 414;
_note_, 414, 416; on exclusion of contractors from seats in
the House, 417; on prohibition of plurality of offices, 417;
on disjunction of military and naval with civil appointments,
417; on importations from Great Britain, 423, 463; on a
plurality of offices in the same person, 466, 469, 471, 472;
on naval appropriations, 474, 475; on repeal of the duty on
salt, 479, 480, 481, 482, 483, 484; on the suspension of the
Habeas Corpus, 511; on the appropriation to build gunboats,
516; on securing the privilege of the Habeas Corpus, 529,
533, 539; on post roads, 542; on compensation to the soldiers
of the Revolution, 622, 623, 624; on relief to the soldiers
of the Revolution, 623, 624; on fortifications and gunboats,
639; communicates information relative to the conduct of
General Wilkinson, 642; on inquiry into the conduct of General
Wilkinson, 649; on fraud in land warrants, 676; on suspension
of the embargo, 695, 706. _See_ _Index_, vol. 2.
RANDOLPH, THOMAS M., Representative from Virginia, 50, 285,
378, 493.
_Rapids of the Ohio_, report relative to a canal at the, 465.
RAWLE, WILLIAM, his testimony for the prosecution on the trial
of Judge Chase, 202.
REA, JOHN, Representative from Pennsylvania, 50, 285, 377, 493,
612.
READ, GEORGE, his testimony for the prosecution on the trial of
Judge Chase, 211.
REED, PHILIP, Senator from Maryland, 487, 547.
REGNIER, his letter to the Imperial Attorney General, Paris,
641.
_Report_ on the contested election of Thomas Lewis, 143;
of committee on the limits of Georgia, 403; relative to
non-importation of slaves into Territories, 407; of committee
on Chesapeake and Delaware Canal, 418; on the claim of
Beaumarchais, 542.
_Representation, ratio of._--_See_ _Index_, vols. 1 and 2.
_Resignation_, does it cause a vacancy.--_See_ _Index_, vol. 1.
_Resolution_ relative to assistance for Sergeant-at-Arms
of the Senate, 4; on supplying Senators with newspapers,
4; relative to number of chaplains, 4; of amendment to the
constitution, 23; of amendment to the constitution as passed
by the Senate, 37; on amendments to constitution, 38; in
Senate, on impeachment of Judge Chase, 45; referring the
President’s Message to committees, 51; in House, to make
provision to carry into effect the treaty of Paris, 53; calling
on President for documents to show the title to Louisiana,
acquired by treaty, 53; vote on, 57; relative to the death of
Edmund Pendleton, 77; relative to the road to Natchez and New
Orleans, 78; relative to postage on newspapers, 79; relative
to making provision for public roads, 83; of inquiry into
the official conduct of Judge Chase, 89; to impose a tax on
imported slaves, 96; relative to the Virginia Yazoo Company,
125; relative to the Georgia claims, 142; of Senate, relative
to the decease of Samuel J. Potter, 165; _note_, 165; to
present a sword to Com. Stephen Decatur, 286; calling for
the names of the officers and men who destroyed the frigate
Philadelphia, 287; to present a sword to Capt. Decatur, 287;
relative to post roads in Tennessee, 295; on the retrocession
of the District of Columbia, 298; relative to the duty on salt,
297; relative to a post road to New Orleans, 302; relative to
emancipation in the District of Columbia, 313; relative to
the protection of seamen, 314; relative to repairs at navy
yards, 314; relative to the Georgia claims, 315; to inquire
if Samuel Hammond has accepted an executive appointment, 319;
relative to counting the electoral votes, 340; relative to
the petition of Richard Taylor, 341; relative to the removal
of federal judges, 341; relative to the payment of witnesses
on the trial of Judge Chase, 343; relative to expenditures
in the navy, 354; on British aggressions on our commerce,
355; of thanks to General Eaton, 371; relative to the decease
of Senator Jackson, 372; relative to the Yazoo claims, 379;
relative to presenting a sword to General Eaton, 380; relative
to the number of impressed seamen, 384; relative to contingent
expenses, 388; relative to non-intercourse, 395; calling for
information relative to the imports and exports to and from
Great Britain, 399; relative to non-intercourse with Great
Britain, 400; relative to the non-importation of slaves into
Territories, 401; _note_, 401, 407; relative to amendment of
the constitution respecting the removal of federal judges, 402;
relative to importations from Great Britain, 403; relative to
the West India trade, 403; in favor of admitting slavery into
Indiana Territory, 406; relative to contractors holding a seat
in the House, 418; relative to a plurality of offices, 418;
relative to adjournment, 474; relative to the coast survey,
494; relative to securing the privilege of the Habeas Corpus,
520; for an amendment of the constitution relative to a removal
of the federal judges, 550; relative to John Smith, 551;
relative to the decease of John Dickinson, 554; relative to an
inquiry into the cause of the attack on the frigate Chesapeake,
614; relative to revolutionary pensions, 614; relative to
British aggressions, 617; to lay an embargo, 641; relative to
an inquiry into the conduct of Gen. Wilkinson, 644; relative
to Government contracts, 659; relative to removal of federal
judges, 675; to compensate Capt. Pike, 676; relative to the
decease of Ezra Darby, 675; relative to the decease of Jacob
Crowninshield, 694.
RHEA, JOHN, Representative from Tennessee, 51, 285, 378, 613;
on conference with the Senate relative to a repeal of the
duties on salt, 482.
_Rhode Island_, vote for President, 168.
_Rhode Island, admission of._--_See_ _Index_, vol. 1.
RICHARDS, JACOB, Representative from Pennsylvania, 50, 285,
377, 493, 612.
RICHARDS, MATTHIAS, Representative from Pennsylvania, 612.
RIKER, SAMUEL, Representative from New York, 285, 612.
_Roads, Post_, bill for the establishment of certain,
considered, 338; object of the measure two-fold, 338; these
objects stated, 338; a shorter route to New Orleans, 338;
advantages for commercial purposes, 339. _See_ _Index_, vol. 1,
_Post Office_.
_Public, in Ohio_, resolutions to provide for considered, in
the House, 83; the resolutions contravene one of the provisions
of the law to which they refer, 83; various propositions, 83;
previous legislation on the subject, 83; the construction
of the law, 83; the question is whether five per cent. was
to be given, exclusive of the three, 84; further remarks on
the construction of the law, 84; the question made an Eastern
and a Western one, 84; further remarks on the construction of
the law, 84; motion to strike out one-twentieth and insert
one-fiftieth, carried, 85.
Bill under consideration, 128; motion to postpone lost, 128;
moved to vest the President with a general power to appoint
three commissioners to designate and report a route, 128;
carried, 128; bill ordered to third reading, 129.
ROBINSON, JONATHAN, Senator from Vermont, 547.
RODNEY, CÆSAR A., Representative from Delaware, 50, 287; on
the amendments to the constitution relative to the election of
President, 60; on the resolution relative to public roads, 84;
on the postponement of the bill to tax imported slaves, 141; on
the Georgia claims, 153; continues the reply to the argument of
the defence on the trial of Judge Chase, 267.
ROOT, ERASTUS, Representative from New York, 52, 285.
ROWAN, JOHN, Representative from Kentucky, 648; offers
resolution for inquiry into the conduct of General Wilkinson,
648, 657; on inquiry into the conduct of Judge Innes, 707.
RUMSEY, DAVID, letter relative to the impressment of his son,
384.
RUSSELL, JOHN, Representative from New York, 377, 493, 612.
S
SAILLY, PETER, Representative from New York, 377, 493.
_Salem, Mass._, memorial of inhabitants on British aggression,
395.
SAMMONS, THOMAS, Representative from New York, 50, 285, 377,
493.
SANDS, JOSHUA, Representative from New York, 50.
SANFORD, THOMAS, Representative from Kentucky, 50, 285, 378,
493; on the amendment to the constitution relative to the
election of President, 60; in favor of carrying the Louisiana
Treaty into effect, 67; on the resolution relative to public
roads, 84.
_Savannah, relief of._--_See_ _Index_, vol. 2.
SAWYER, LEMUEL, Representative from North Carolina, 613; on
fortifications and gunboats, 629.
SCHUNEMAN, MARTIN G., Representative from New York, 377, 493.
SCOTT, WILLIAM, letter of Secretary of War relative to, 314.
_Seamen, protection of._--Letter from the Secretary of State
relative to the number impressed considered, 313; subject
demands investigation, 314; proclamations of Governors of
British West India Islands, 314; objects of British Government,
314; will the United States tamely submit to this impressment?
314; resolution of inquiry on the subject, 314; do. referred,
314. _Seamen, impressment of_, resolution of inquiry relative
to, offered in the House, 384; number detained in the British
service, 384; information already obtained has produced a loud
expression of public indignation, 385; resolution of inquiry
agreed to, 385.
_Seat of Government._--In Senate, bill for the temporary
removal to the City of Baltimore considered, 45; motion to
postpone further consideration, 45; bill offered as a spur
to the inhabitants at Washington to effect a more complete
accommodation of Congress, 45; design of the bill to frighten
the women and children of Washington, 46; moral right of
Congress to remove Seat of Government denied, 46; Congress
possess the constitutional power of altering the Seat of
Government, 46; the permanent Seat of Government was fixed
under the constitution, and Congress did not possess the power
to alter it, 46; to remove would be to prostrate the national
faith, 46; motion to postpone lost, 46; Trenton offered to
Congress for their accommodation in case of any removal, 46;
four rightful grounds of removal could exist, 46; moved to
strike out the words “Baltimore” and “Maryland” 47; agreed to,
47; causes of the inconveniences at Washington, 47; the Seat
of Government will yet be transferred to the Mississippi, 47;
the least expensive course is to remove--time cannot cure the
ill accommodations, 47; constitutional point examined, 47; the
seat once fixed becomes permanent, 48; motion to order a third
reading lost, 48. _See_ _Index_, vols. 1 and 2.
SEAVER, EBENEZER, Representative from Massachusetts, 50, 285,
377, 493, 612.
_Seditious practices._--_See_ _Index_, vol. 2.
_Senate_, recedes from disagreement to amendments of the
House to bill authorizing the President to take possession of
Louisiana, 9; _note_, 9; admission to the floor of, considered,
39; adjournment of first session of eighth Congress, 49; motion
relative to absent members, 168; vote of thanks to Aaron Burr,
170; proceedings on the impeachment of Samuel Chase, 175;
adjournment at close of first session of tenth Congress, 611.
_Senators_, classification of, 38.
_Sinking Fund_, report of commissioners, 354.
_Slavery._--Memorial of American Convention for promoting
abolition of, and prohibiting the introduction of slaves into
Louisiana, considered, 41.
_Slavery in Territories_, power of Congress relative to, as
asserted in the act erecting the Territory of Louisiana,
_note_, 44.
_Slavery in Indiana Territory_, petitions for, 385.
_Slavery._--Resolutions of Indiana council, relative to a
suspension of the ordinance of 1787, 503; report on, 519;
report in the Senate on the resolutions of the Legislative
Council of Indiana, relative to the suspension of the ordinance
of 1787, 550; considered in the Senate, 551; resolution on
passed, 551.
_Slavery in Territories._--Memorial of Quakers, 313.
_Slavery, prohibiting in a Territory._--_See_ _Index_, vols. 1
and 2.
_Slavery and Slave Trade._--_See_ _Index_, vols. 1 and 2.
_Slaves, importation of_, motion in Senate to appoint a
committee to report if any amendments are necessary in the
act relative to, 39; resolution relative to non-importation
in Territories, 401; resolution in favor of suspending the
ordinance of 1787 relative to slavery in Indiana Territory,
406; report relative to non-importation in Territories, 407.
Moved to strike out so much of the bill as inflicts the
punishment of death on owners and masters of vessels employed
in slave trade, 500; crime in question most heinous, and
ought to be punished capitally, 500; most effectual method of
stopping the trade, 500; question whether we shall strike out
that part of the section which attaches the crime of felony to
the traffic, 500; penalty just, but too severe to be executed,
500; punishment of death not best calculated to stop the
traffic, 501; now said forfeiture is unnecessary, punishment
of death will stop the traffic, 501; no man in the Southern
States will dare inform, 501; slavery not considered an evil
in the Southern States, 501; capital punishments not inflicted
for political evils, 501; motion to strike out carried, 502;
imprisonment substituted, 502; bill from the Senate to prohibit
the importation after January first, 1808, read third time and
passed, 519; _note_, 519. _See_ _Duties on Imports_. _Also_
_Index_, vol. 1.
SLOAN, JAMES, Representative from New Jersey, 86, 285, 377,
493, 612; on a tax on imported slaves, 135; on the bill to
bridge the Potomac, 290, 298, 300; on the retrocession of the
District of Columbia, 310; on the importation of slaves, 385,
401; on the application of the Society of Harmony, 404, 405; on
incorporating a church in Georgetown, 408; on importations from
Great Britain, 437; on the importation of slaves, 500; on the
suspension of the Habeas Corpus, 510.
SMELT, DENNIS, Representative from Georgia, 497, 613.
SMILIE, JOHN, Representative from Pennsylvania, 50, 285, 377,
493, 612; on the amendment to the constitution, relative to
the election of President, 59; on extending the authority of
the United States over the Louisiana Territory, 76; advocates
a repeal of the bankrupt law, 79; opposes augmentation of the
navy, 87; on the inquiry into the official conduct of Judge
Chase, 89, 96; on the bill to bridge the Potomac, 290, 291,
298; on the retrocession of the District of Columbia, 304; on
the presentation of a sword to Gen. Eaton, 382; on laying a
duty on imported slaves, 387; on discharging the committee from
consideration of neutral rights, 393; on the application of
the Society of Harmony, 404, 406; on incorporating a church in
Georgetown, 408; on amendment of the constitution, relative to
the removal of federal judges, 415; on importations from Great
Britain, 435; on naval appropriations, 476; on the exclusion
of military and naval officers from civil employment, 476,
477; on building gunboats, 626; on inquiry into the conduct of
Gen. Wilkinson, 645, 652; on inquiry into the conduct of Judge
Innes, 701, 708. _See_ _Index_, vols. 1 and 2.
SMITH, DAVID, Senator from Tennessee, 345, 487, 547. _See_
_Index_, vol. 2.
SMITH, ISRAEL, Senator from Vermont, 3, 163, 345, 485; on
British aggressions on our commerce, 355. _See_ _Index_, vols.
1 and 2.
SMITH, JEREMIAH K., Representative from New Hampshire, 612.
_See_ _Index_, vol. 2.
SMITH, JOHN, Senator from New York, 44, 165, 349. _See_
_Index_, vol. 2.
SMITH, JOHN, Senator from Ohio, 8, 165, 349, 490; resolutions
relative to, introduced into the Senate, 551; report thereon,
552; notification to Smith, 552; resolution relative to, 552;
in Senate to hear the counsel of John Smith why he should not
be expelled, 554; changed to hear counsel why the report should
not be adopted, 554; counsel would show that the testimony
of the main witness against Smith was not worthy of credit
and nothing to affect the character of the accused, 555;
further proceedings, 555; reasons of counsel why the report
should not be adopted, commenced, 556; examination of the
direct testimony submitted, 556, 557, 558; examination of the
circumstantial testimony offered by other witnesses in support
of the accusation, 558; circumstances which have been distorted
against the accused, 559; evidence of Smith’s innocence, 560;
Smith’s character and situation in life, 561; charge against
Smith is, of being connected with Colonel Burr in the late
conspiracy, 563; grounds of proof stated, 563; these grounds
examined in detail by counsel for the defence, 563, 564, 565,
566, 567, 568, 569, 570, 571, 572, 573; arguments of counsel
for defence closed, 573; resolution of expulsion of Senator
John Smith, of Ohio, for participation in the conspiracy of
Aaron Burr, submitted to the Senate, 578; what is the evidence
of Mr. Smith’s participation in the conspiracy, examined, 574
to 584; principles of the report of the committee condemned,
584; the Senate have cognizance of the case, 584; to vote for
the resolution is to disrobe a Senator of his honor, and doom a
citizen, 584; examination of the points relied on against Mr.
Smith, 584, 585, 586, 587, 588, 589; other points considered
and reviewed, 589, 590, &c.; arguments against Mr. Smith,
598, &c.; counsel for Mr. Smith opposed the resolution on two
grounds: 1st. That the Senate have no jurisdiction of the case.
2d. That the evidence does not warrant its adoption, 602; is
the resolution supported by the evidence? this point examined,
602, &c.; resolution lost, 606; _note_, 606.
SMITH, JOHN, Representative from New York, 52.
SMITH, JOHN, Representative from Virginia, 50, 285, 378, 493,
613. _See_ _Index_, vol. 2.
SMITH, JOHN C., Representative from Connecticut, 50, 285, 377;
on the Georgia militia claims, 128; on laying a tax on imported
slaves, 391; on the importation of slaves, 401; on payment of
witnesses on the trial of Chase, 409; on naval appropriations,
478.
SMITH, O’BRIEN, Representative from South Carolina, 383.
SMITH, SAMUEL, Senator from Maryland, 3, 163, 345, 485, 547;
in choice of House from five highest candidates, 22; on the
amendment to the Constitution relative to the election of
President, 26; on suspending intercourse with St. Domingo, 350;
elected President _pro tem._ of the Senate, 378; on British
aggressions on our commerce, 369. _See_ _Index_, vol. 2.
SMITH, SAMUEL, Representative from Pennsylvania, 377, 493, 612.
SMITH, SAMUEL H., his testimony for the prosecution on the
trial of Judge Chase, 214.
_Soldiers of the Revolution_, one system of national defence
which ought to be sedulously cherished, 622; to arm the
national defence--muskets in the hands of citizens and cannon
in the arsenals, 622; a measure of justice should precede any
step for defence, 622; how could the Government call on the
youth of the nation for defence, when the veterans of the
Revolution were begging from door to door, 622; resolutions
submitted, 623; the provision made for these soldiers was
notoriously scanty and mean, 623; the pathetic appeal to the
House by one of its oldest members, 623; moved to strike out
the word “disgraceful” from the resolutions, 623; shall our
public lands, commerce and every blessing, be participated
in by those who sacrificed nothing for our independence,
while those who achieved it are suffered to live and die in
wretchedness? 624; compare the services of Lewis and Clarke
with that of the soldiers of the Revolution, 624; what a
wide difference in their remuneration, 624; there are other
sufferers besides the officers and soldiers, 624; no necessity
for the amendment, 624; do not desire to disclose our own
disgrace, 625; amendment carried, 625.
SOUTHARD, HENRY, Representative from New Jersey, 86, 283, 377,
493, 612; on improving the navigation of the Potomac, 292; on
the retrocession of the District of Columbia, 307; on laying a
duty on imported slaves, 386, 389; on incorporating a church
in Georgetown, 408, 409; on fortifications and gunboats, 635.
_See_ _Index_, vol. 2.
_South Carolina._--Vote for President, 168.
STANFORD, RICHARD, Representative from North Carolina, 50, 285,
378, 493, 613; advocates a repeal of the bankrupt law, 79;
on the bridging the Potomac, 298; on the retrocession of the
District of Columbia, 303. _See_ _Index_, vol. 2.
STANTON, JOSEPH, Representative from Rhode Island, 50, 285,
377, 493; on a tax on imported slaves, 137. _See_ _Index_, vol.
2.
_State Balances._--_See_ _Index_, vol. 2.
_St. Domingo_, to suspend commercial intercourse with, leave
asked, in Senate, to bring in a bill, 349; attention called
to the subject by the President in his message, 349; this
commerce in violation of law and of the treaty with France,
349; purpose of the bill totally to prohibit a branch of
commerce of great importance to the country, 349; a trade
highly dishonorable, 349; United States regarded as allies,
supporters, and protectors of this trade, 350; our supplies
have preserved the colony to the mother country, 350; subject
has already been investigated, 350; means by which this
commerce carried on not approved, 350; this measure improper
and ill-timed, 351. Amendments to bill considered, 355; bill
ordered to third reading, 355. Third reading resumed, 360;
this bill interdicts all commerce between this country and St.
Domingo, 360; advantages of our local situation for the West
India trade, 360; people of St. Domingo can be considered only
as revolted slaves, or French subjects in rebellion, and to
trade with them a violation of the laws of nations, considered,
361; their liberty solemnly proclaimed, 362; present state of
St. Domingo, 362; how far is trade with them a violation of the
law of nations? 362; the British consider St. Domingo a colony
of France, 363; bill passed, 364.
STEDMAN, WILLIAM, Representative from Massachusetts, 50, 285,
384, 493, 612.
STEPHEN, JOHN, his testimony for the prosecution on the trial
of Judge Chase, 214.
STEPHENSON, JAMES, Representative from Virginia, 50, 285.
STEWART, JOHN, Representative from Pennsylvania, 285.
STONE, DAVID, Senator from North Carolina, 3, 165, 345, 485.
_See_ _Index_, vol. 2.
STORER, CLEMENT, Representative from New Hampshire, 612.
STURGES, LEWIS B., Representative from Connecticut, 377, 493,
612.
_Suability of the States._--_See_ _Index_, vol. 2.
SUMTER, THOMAS, Senator from South Carolina, 165, 345,
547.--_See_ _Index_, vol. 2.
SWART, PETER, Representative from New York, 612.
T
TAGGART, SAMUEL, Representative from Massachusetts, 50, 286,
377, 493, 612.
TALLMADGE, BENJAMIN, Representative from Connecticut, 79, 377,
493, 612; on the importation of slaves, 500; on the bill to
authorize a detachment from the militia of the United States,
392; on the appropriation to build gunboats, 518.
_Taxes, Direct and Indirect._--_See_ _Index_, vol. 2.
TAYLOR, JOHN, Senator from Virginia, 3; of the acquisition of
territory and the creation of a State by the treaty-making
power, 14; on the amendment to the constitution relative to the
election of President, 33; his testimony for the prosecution on
the trial of Judge Chase, 207. _See_ _Index_, vol. 1.
TAYLOR, JOHN, Representative from South Carolina, 613; on
inquiry into the conduct of General Wilkinson, 654; on inquiry
into the conduct of Judge Innes, 708.
_Tennessee._--Vote for President, 168.
_Tennessee, Admission of._--_See_ _Index_, vol. 1.
TENNEY, SAMUEL, Representative from New Hampshire, 50, 285,
377, 493. _See_ _Index_, vol. 2.
_Territories ceded by France_, bill to authorize President to
take possession of, 6.
_Territories_, extension of the constitution to them, _note_ 9.
_Territories._--_See_ _Index_, vols. 1 and 2.
THATCHER, SAMUEL, Representative from Massachusetts, 52, 287;
on the call for documents relative to the title of Louisiana,
55; against the resolution to carry the Louisiana treaty into
effect, 67; on the resolution to appoint a committee to inquire
into the official conduct of Judge Chase, 116.
THOMAS, DAVID, Representative from New York, 50, 285, 377,
494, 612; on the duty on salt, 295; on non-intercourse, 395;
on repeal of the duty on salt, 479; on relief to the soldiers
of the Revolution, 624; on fortifications and gunboats, 632.
_See_ _Index_, vol. 2.
THOMPSON, JOHN, Representative from New York, 612. _See_
_Index_, vol. 2.
THOMPSON, PHILIP R., Representative from Virginia, 50, 285,
378, 493. _See_ _Index_, vol. 2.
THOMPSON, THOMAS W., Representative from New Hampshire, 317,
493.
THRUSTON, BUCKNER, Senator from Kentucky, 346, 485, 547.
TIBBITS, GEORGE, Representative from New York, 78, 287.
TIFFIN, EDWARD, Senator from Ohio, 547.
TILGHMAN, HENRY, his testimony for the prosecution on the trial
of Judge Chase, 201.
_Title of President._--_See_ _Index_, vol. 1.
TRACY, URI, Representative from New York, 377, 493.
TRACY, URIAH, Representative from Connecticut, 3, 163, 345,
485; on rule relative to separate readings of resolutions, 7;
against the issue of stock for the purchase of Louisiana, 15;
on the amendment to the constitution, relative to election of
President, 30; on a two-thirds vote, 37; on British aggressions
on our commerce, 359. _See_ _Index_, vols. 1 and 2.
_Treason and Sedition, bill to define._--_See_ _Index_, vol. 2.
_Treaty with Great Britain._--_See_ _Index_, vol. 1.
TRIGG, ABRAM, Representative from Virginia, 50, 378, 497, 613.
_See_ _Index_, vol. 2.
TRIGG, JOHN, Representative from Virginia, 51. _See_ _Index_,
vol. 2.
TRIPLETT, JAMES, his testimony for the prosecution on the trial
of Judge Chase, 210.
_Tripolitan War and Mediterranean Fund_, bill relative to, 158.
TROUP, GEORGE M., Representative from Georgia, 613.
_Tunis_, demand and threat of, 375.
TURNER, JAMES, Senator from North Carolina, 351, 487, 547.
_Turnpike to the Ohio_, bill for, before the Senate, 45.
_Two-thirds vote_, majority required, considered, 21.
U
UPHAM, JABEZ, Representative from Massachusetts, 612.
V
VAN ALLEN, JAMES J., Representative from New York, 612. _See_
_Index_, vols. 1 and 2.
VAN CORTLANDT, PHILIP, Representative from New York, 50, 285,
380, 493, 612. _See_ _Index_, vols. 1 and 2.
VAN DYKE, NICHOLAS, Representative from Delaware, 623; his
testimony for the defence on the trial of Judge Chase, 226.
VAN HORNE, ARCHIBALD, Representative from Maryland, 613.
VAN HORNE, ISAAC, Representative from Pennsylvania, 50, 286.
_See_ _Index_, vol. 2.
VAN RENSSELAER, KILLIAN K., Representative from New York, 50,
285, 377, 493, 612. _See_ _Index_, vol. 2.
VARNUM, JOSEPH B., Representative from Massachusetts, 50, 285,
377, 493, 612; moves amendment to bill to repeal Bankrupt Law,
82; on the resolution relative to public roads, 84; on the bill
relative to the Louisiana Territory, 144; on revision of the
army rules, 378; on the bill to authorize a detachment from the
militia of the United States, 392; on a plurality of offices in
the same person, 472; on the suspension of the habeas corpus,
508; chosen Speaker of the 1st session, Tenth Congress, 613;
address to House, 613. _See_ _Index_, vols. 1 and 2.
VENABLE, ABRAHAM B., Senator from Virginia, 38; resigned, 163.
_See_ _Index_, vols. 1 and 2.
_Vermont_, vote for President, 168.
VERPLANCK, DANIEL C., Representative from New York, 50, 285,
380, 494, 612.
_Vessels registering and clearing._--_See_ _Index_, vol. 1.
_Virginia, Yazoo Company_, motion relative to, 125.
_Virginia_, vote for President, 168.
W
WADSWORTH, PELEG, Representative from Massachusetts, 50, 287,
377, 494. _See_ _Index_, vols. 1 and 2.
WALTON, MATTHEW, Representative from Kentucky, 50, 298, 383,
502.
WELLS, WILLIAM HILL, Senator from Delaware, 3; resigns, 163;
against the issue of stock for the purchase of Louisiana, 11.
_See_ _Index_, vol. 2.
WHARTON, JESSE, Representative from Tennessee, 613.
WHITE, SAMUEL, Senator from Delaware, 3, 163, 345, 485, 547;
against issue of stock for the purchase of Louisiana, 9; on
amendments to the constitution, relative to the election of
President, 27; announces the death of John Dickinson, 553.
_See_ _Index_, vol. 2.
WHITEHILL, JOHN, Representative from Pennsylvania, 50, 285,
377, 493.
WHITEHILL, ROBERT, Representative from Pennsylvania, 377, 493,
612.
WICKES, ELIPHALET, Representative from New York, 379.
WILBOUR, ISAAC, Representative from Rhode Island, 612.
WILKINSON, GENERAL, facts stated in relation to his conduct,
642; documents, 642, 643; a member of the House could, if
obliged, give the House more full, important and damning
evidence, 644; resolution that the President cause an inquiry
into the conduct of General Wilkinson as to his having
corruptly received money from the Government of Spain moved,
644; the member had heretofore tendered information to the
Government, who had turned a deaf ear, now he should not be
influenced by fear, favor or affection, to gratify curiosity,
644; proceedings on the resolution, 644; incidental questions
debated, 644; has Congress the constitutional right to request
the President to make the inquiry? 644; can a member be called
to give testimony in his seat or at the bar of the House?
645; other questions, 645; nothing impeaching the character
of General Wilkinson, 645; inquiry was necessary, and due
to the country and to General Wilkinson, 645; impropriety
of proceeding hastily, 645; evidence produced sufficient on
which to ground inquiry, 646; an inquiry must be made, 646;
people of Kentucky interested in this subject, 646; at this
time, if ever, persons in office should have the confidence
of the Government, 646; can they have this confidence in
General Wilkinson? 646; a resolution substituted and adopted,
646; statement of the member of the House, 646; resolution
of inquiry moved, 648; not within the power of the House to
adopt the resolution, 648; the offence charged is cognizable
by more than one department, 648; should not pass over the
constitutional limits of their duty, 649; gentlemen mistake
by considering that where the House is incompetent to inflict
punishment it is incompetent to inquire, 649; competency
examined, 649; any inquiry which this House may choose to make
into the conduct of any officer, civil or military, is not
an interference with the powers of any co-ordinate branch of
Government, 650; part taken by the Army in the late project to
dismember the Union, 650; evidences of those suspicions, 650;
interpretation of a ciphered letter, 651; not shown that the
House possesses the powers to proceed in the business, 652;
effect of this motion is to hold this man up to suspicion for
years to come, 652; if an improper character is commissioned
to command our armies, let the responsibility fall where the
constitution has placed it, 653; other tribunals than this
House, 654; resolution offered to refer the papers, &c., to
the Secretary of War, 654; the power of the House is called
in question, 654; the resolution, in plain terms, is to
denounce the man, 654; will establish a dangerous precedent,
654; interfere with the Executive Department, 654; assume
the responsibility attaching there, 654; why make this House
a great gun to thunder denunciations against an individual?
655; it will interfere with the Judiciary Department, 655; you
deprive the man of a fair trial in the military Courts, 655;
duty of the Legislature to pass laws for the regulation of the
army, 655; experience of history, 656; search the constitution
for this denunciatory power, vested in this House, 656;
original motion renewed, 657; agreed to, 657; facts respecting
the information relative to General Wilkinson being a Spanish
pensioner, and a combination being formed to dismember the
Union being in possession of the Executive, 658; resolution
calling on the President for documents adopted, 658; Message
from the President with documents, 663; referred, 664; papers
presented, 708; referred to the President, 709; documents
sent to the House by the President, relative to, 663; letter
of Estevan Miro, 665; letter of M. Gayoso De Lemos, 665;
paper relative to the commerce of Louisiana, 666; letters of
Andrew Ellicott to the Secretary of State, 668; extract from
Jefferson’s Message, 670; letters from Baron de Carondelet,
671; do. from Daniel Clark, 671; letter from Thomas Power,
672; do. from Thomas Portell, 673; Wilkinson’s instructions to
Thomas Power, 673; letter of Thomas Power, 674; letter of Baron
de Carondelet, 675.
WILLIAMS, DAVID R., Representative from South Carolina, 378,
493, 613.
WILLIAMS, MARMADUKE, Representative from North Carolina, 50,
287, 378, 616; on securing the privilege of Habeas Corpus, 534.
WILLIAMS, NATHAN, Representative from New York, 377, 497.
WILLIAMS, LEMUEL, Representative from Massachusetts, 50, 285.
_See_ _Index_, vol 2.
WILLIAMS, D. R., on the non-importation of slaves into
Territories, 401; on importations from Great Britain, 433; on
importations from Great Britain, 441; on Naval appropriations,
474, 475, 478; on the importation of slaves, 495; on excluding
settlers from the public lands, 544; on suspension of the
Embargo Act, 692.
WILSON, ALEXANDER, Representative from Virginia, 378, 493, 613.
WINCHESTER, JAMES, his testimony for the defence on the trial
of Judge Chase, 219, 227.
WINDER, WILLIAM H., his testimony for the defence on the trial
of Judge Chase, 227.
WINSTON, JOSEPH, Representative from North Carolina, 50, 285,
378, 493.
WITHERALL, JAMES, Representative from Vermont, 612.
_Witnesses, payment of in the case of Judge Chase_, bill
considered in the House, 409; disagreement between the Houses
prevented passage of a bill last session, 410; the bill from
the Senate a taxation of costs by the court who sat on this
occasion, 410; shall the House pay all the witnesses, 410; not
the practice of courts--the States often pay where the accused
is acquitted, 410; why pay all the expenses in this case, and
not in any other, 410; the acquittal was constitutional, but
not by a majority of the Senate, 410; no data to determine what
witnesses had been summoned on one side and what on the other,
410; no law prescribing the fees of witnesses, 410; bound to
compensate in the abstract principle of justice and right, as
well as from precedent and practice, 411; is it just to compel
the attendance of men and not give them compensation, 411; bill
calculated to establish a great principle, whether the United
States bear the burden in all cases of impeachment, 411; when
an officer exposes himself to impeachment, it is not desirable
to offer the protection held out in the bill, 412; not the
practice in United States Courts or in England to pay witnesses
on an acquittal, 412; if the Judge had been convicted he would
have been free of all costs, 412; the circumstances should
decide the case, 412; could not know for whom the witnesses
were summoned, 412; what law authorizes them to recover from
the respondent, 412; the Senate omitted to insert in the
subpœna on whose side the witnesses were called, 413; committee
rose, 413.
WORTHINGTON, THOMAS, Senator from Ohio, 3, 163, 345, 485;
presents petition of inhabitants of Indiana, 20; on British
aggressions on our commerce, 357.
WRIGHT, ROBERT, Senator from Maryland, 3, 163, 346; opposes
reference of resolution for amendment of the constitution to
a select committee, 7; on the purchase of Louisiana, 12; on
the number of candidates to be presented to the House for Vice
President, 24; moves to postpone the bill for a temporary
removal of the seat of Government, 45. _See_ _Index_, vol. 2.
WYNN, RICHARD, Representative from South Carolina, 57, 287,
401, 614. _See_ _Index_, vol. 1.
WYNN, THOMAS, Representative from North Carolina, 50, 287, 378,
493. _See_ _Index_, vol. 2.
Y
_Yazoo claims_ bill, relative to passed, 470.
_Yeas and Nays, in Senate_, on bill to authorize the President
to take possession of territory ceded by France, 8; on the
bill to authorize the issue of stock for the purchase of
Louisiana, 20; on the amendment to the number of candidates
to be presented to the House from which to choose a Vice
President, 27; on the number of candidates to be presented
to the House from which to choose a Vice President, 27; on
the amendment to the constitution relative to the election of
President, 37; on the bill to repeal the Bankrupt Act, 38;
on third election of President, 38; relative to admission of
persons to the floor of, 39; on the amendment to the bill
relative to the erection of Louisiana into two territories,
40, 41, 42; on turnpike to the Ohio, 45; on act relative to
post roads, 45; on postponement of the bill relative to removal
of Seat of Government, 46; on ordering the bill relative to a
removal of the Seat of Government to a third reading, 48; on
the guilt of Judge Chase, as charged in the separate articles
of impeachment, 281, 282, 283; on the amendment to the bill
for purchase of Florida, 353; on motion to refer the bill
relative to the purchase of Florida to Select Committee, 354;
on amendments to the bill relative to the purchase of Florida,
354; on motion to strike out the resolution relative to British
aggressions on our commerce, 358; on resolutions relative
to British aggressions, 359; on bill to suspend intercourse
with St. Domingo, 364; on the bill to prevent the abuse of
the privileges of foreign ministers, 369; on the bill for the
relief of Capt. Peter Landais, 370; to postpone the bill
relative to a bridge over the Potomac, 374; on the bill to
exclude army and navy officers from civil appointments, 375;
on the bill to prohibit the importation of certain articles,
374; on passage of the bill, 375; on expunging the journal
of the Senate, 376; on bill relative to the salt duty, 491;
on expelling Senator John Smith, 606. _In the House_, on the
resolution to carry the Louisiana treaty into effect, 71;
on the bill authorizing the President to take possession of
the Louisiana territory, 77; on the resolution to repeal
the Bankrupt Law, 82; on the motion to adjourn, 94; on the
amendment to the resolution of inquiry into the official
conduct of Judge Chase, 98; on the amendment to the resolution
to appoint a committee to inquire into the official conduct
of Judge Chase, 124; on the resolution to appoint a committee
to inquire into the official conduct of Judge Chase, 124; on
motion to postpone resolution laying a tax on imported slaves,
139; on the postponement of certain sections of the bill
relative to the Georgia claims, 157; on the bill relative to
the government of Louisiana, 158; _note_, 158; on the petition
of Thomas Morris relative to African slavery, 166; on the
bill for the relief of the widow of Gen. Moses Hazen, 166; on
the reference of the petition of Andrew Jackson, 167; for a
third reading of the bill to grant the franking privilege to
Aaron Burr, 168; _note_, 168; on postponing the bill granting
the franking privilege to Aaron Burr, 169; on passage of the
bill, 169; on the resolution to impeach Judge Chase, 174; on
the articles of impeachment against Judge Chase, 175; on the
resolutions relative to the retrocession of the District of
Columbia, 311; on the resolution relative to emancipation in
the District of Columbia, 313; on the resolution relative
to the Georgia claims, 337; on the resolution relative to
the removal of Federal Judges, 341; on the reference of the
proposed amendment of the constitution relative to the recall
of Senators, 341; on the motion to postpone the bill relative
to specific duties, 342; on laying a tax on imported slaves,
391; on erecting a bridge over the Potomac, 398; on postponing
the bill relative to the importation of slaves, 401; on the
indefinite postponement of the resolution for amending the
constitution relative to the removal of Federal Judges, 417; on
resolutions relative to importations from Great Britain, 465;
on the bill to prohibit the importation of British goods, 466;
on the bill relative to the Yazoo claims, 470; on the exclusion
of army and naval officers from civil offices, 473; on the bill
for the exclusion of military and naval officers from civil
employment, 478; on the bill for the repeal of the duties on
salt, 481; on the punishment of death on owners and masters of
vessels engaged in the slave trade, 502; on rejecting the bill
from the Senate suspending the writ of Habeas Corpus, 515; on
the bill to prohibit the importation of slaves, 519; in House,
on Embargo Act, 641; on the resolution of inquiry into the
conduct of Gen. Wilkinson, 657; on suspension of the embargo,
707.
YORK, JOHN, petition for relief as tax collector, 313.
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92 FISHER AMES.
country.” In 1788 he was chosen to the State legislature, in which
assembly he advocated important educational measures, in view of
elevating the character of the great mass of the people, and rendering
them capable of higher enjoyments. In 1789 he was elected a member of
the first Congress under the constitution, in which body he remained
during the eight years of Washington’s administration. He was a strong
advocate of the federal policy, and on every question of importance took
an active part. He opposed the commercial resolutions of Mr. Madison,
because he thought “that commerce could not be served by regulations,
which should oblige us to ‘sell cheap and buy dear,’ and he inferred
that the effect of the resolutions could only be to gratify partialities
and resentments, which all statesmen should discard.” In April, 1796, he
delivered his celebrated speech on the appropriation for Jay’s Treaty, a
production full of the deepest pathos and richest eloquence.[A] At the
termination of the session of Congress, Mr. Ames travelled at the south
for his health, which had for many months been gradually sinking. On
his partial recovery, he took his seat at the next session, and entered
upon the duties of his office. At the end of this session he returned
to his home at Dedham, and declining a re-election, took upon himself
the practice of his profession. He continued writing political essays
during the remainder of his life, all of which bear the mark of the
statesman and ripe scholar. In the year 1804 he was called to the chair
of the presidency of Harvard College, which honor he declined on account
of failing health, and a consciousness that his habits were not adapted
to the office. On the morning of the Fourth of July, 1808, he expired,
having just completed the fiftieth year of his age.[B]
MADISON’S RESOLUTIONS.
The House of Representatives, on the third of January, 1794, resolved
itself into a Committee of the Whole, on the report of Mr. Jefferson,
Secretary of State, “On the nature and extent of the privileges and
restrictions of the commercial intercourse of the United States with
foreign nations, and the measures which he thought proper to be adopted
for the improvement of the commerce and navigation of the same,” when Mr.
Madison introduced a series of resolutions, proposing to impose “further
restrictions and higher duties, in certain cases, on the manufactures
and navigation of foreign nations, employed in the commerce of the
United States, than those now imposed.”[C] On these resolutions Mr. Ames
addressed the committee, on the twenty-seventh of January, as follows:
MR. CHAIRMAN: The question lies within this compass: is there any measure
proper to be adopted by Congress, which will have the effect to put
our trade and navigation on a better footing? If there is, it is our
undoubted right to adopt it, (if by right is understood the power of
self-government, which every independent nation possesses,) and our own
as completely as
[A] Dr. Charles Caldwell, in his autobiography, thus speaks of
Ames’s eloquence: “He was decidedly one of the most splendid
rhetoricians of the age. Two of his speeches, in a special
manner--that on Jay’s treaty, and that usually called his ‘Tomahawk
speech’ (because it included some resplendent passages on Indian
massacres)--were the most brilliant and fascinating specimens of
eloquence I have ever heard; yet have I listened to some of the
most celebrated speakers in the British Parliament--among others,
to Wilberforce and Mackintosh, Plunket, Brougham, and Canning:
and Dr. Priestley, who was familiar with the oratory of Pitt the
father and Pitt the son, and also with that of Burke and Fox, made
to myself the acknowledgment that, in his own words, the speech
of Ames, on the British treaty, was the most bewitching piece of
parliamentary oratory he had ever listened to.”
[B] In the preparation of this sketch, the editor has relied mainly
on Mr. Kirkland’s chaste memoir of Mr. Ames, which is attached to
the published works of that eminent orator.
[C] Mr. Madison, in explanation of his motives and views, spoke of
the security and extension of our commerce as a principal object
for which the federal government was formed. He urged the tendency
of his resolutions to secure to us an equitable share of the
carrying trade; that they would enable other nations to enter into
competition with England for supplying us with manufactures; and in
this way he insisted that our country could make her enemies feel
the extent of her power, by depriving those who manufactured for us
of their bread. He adverted to the measures enforced by a certain
nation contrary to our maritime rights, and out of the proceeds
of the extra impositions proposed, he recommended a reimbursement
to our citizens of their losses arising from those measures. He
maintained that if the nation cannot protect the rights of its
citizens, it ought to repay the damage; and that we are bound to
obtain reparation for the injustice of foreign nations to our
citizens, or to compensate them ourselves.--_Ames’s Works, page 24._
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