Ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the Executive Department.
The decision, then, on the case of vessels captured within the American jurisdiction, by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation; which he has declared to stand on the same principles with those which ought to have governed the case of Thomas Nash; and which deserves the more respect, because the Government of the United States was then so circumstanced as to assure us that no opinion was lightly taken up, and no resolution formed but on mature consideration; this decision, quoted as a precedent and pronounced to be right, is found, on fair and full examination, to be precisely and unequivocally the same with that which was made in the case under consideration. It is a full authority to show that, in the opinion always held by the American Government, a case like that of Thomas Nash is a case for Executive and not Judicial decision.
The clause in the constitution which declares that "the trial of all crimes, except in cases of impeachment, shall be by jury," has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the Executive to the Judicial Department.
But certainly this clause in the Constitution of the United States cannot be thought obligatory on, and for the benefit of, the whole world. It is not designed to secure the rights of the people of Europe and Asia, or to direct and control proceedings against criminals throughout the universe. It can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing offences committed against the Government of the United States, and to which the jurisdiction of the nation may rightfully extend.
It has already been shown that the courts of the United States were incapable of trying the crime for which Thomas Nash was delivered up to justice. The question to be determined was, not how his crime should be tried and punished, but whether he should be delivered up to a foreign tribunal, which was alone capable of trying and punishing him. A provision for the trial of crimes in the courts of the United States is clearly not a provision for the performance of a national compact for the surrender to a foreign Government of an offender against that Government.
The clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the United States. Had such a construction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation, before the first disciplined invader who should approach our shores. Necessity would have imperiously demanded the review and amendment of so unwise a provision. If, then, this clause does not extend to offences committed in the fleets and armies of the United States, how can it be construed to extend to offences committed in the fleets and armies of Britain or of France, or of the Ottoman or Russian Empires?
The same argument applies to the observations on the seventh article of the amendments to the constitution. That article relates only to trials in the courts of the United States, and not to the performance of a contract for the delivery of a murderer not triable in those courts.
In this part of the argument, the gentleman from New York has presented a dilemma, of a very wonderful structure indeed. He says that the offence of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign Government, where his punishment was inevitable.
It had escaped the observation of that gentleman, that if the murder committed by Thomas Nash was a crime, yet it was not a crime provided for by the constitution, or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma, then, the gentleman from New York is, himself, perfectly at liberty to retain either horn. He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country.
The gentleman is incorrect in every part of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude had the treaty never been formed. It is not punished by sending the offender out of the United States. The experience of this unfortunate criminal, who was hung and gibbeted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the United States.
The gentleman from Pennsylvania and the gentleman from Virginia have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination.
The points of law which must have been decided, are stated by the gentleman from Pennsylvania to be, first, a question whether the offence was committed within the British jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty.
It is true, sir, these points of law must have occurred, and must have been decided; but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of Executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the constitution, made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution.
When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for Executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American Government was bound to restore them, if in its power, were questions of law; but they were questions of political law, proper to be decided, and they were decided by the Executive, and not by the courts.
The casus fœderis of the guarantee was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus fœderis, under the twenty-seventh article of the treaty with Great Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts.
If a murder should be committed within the United States, and the murderer should seek an asylum in Britain, the question whether the casus fœderis of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts.
When, therefore, the gentleman from Pennsylvania has established, that in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument.
The case was in its nature a national demand made upon the nation. The parties were the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.
The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.
He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.
He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.
The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive Department to execute the contract by any means it possesses.
The gentleman from Pennsylvania contends that, although this should be properly an Executive duty, yet it cannot be performed until Congress shall direct the mode of performance. He says that, although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of cases expressly allotted to them by the constitution. The Executive, he says, can, no more than courts, supply a legislative omission.
It is not admitted that, in the case stated, courts could not have taken jurisdiction. The contrary is believed to have been the correct opinion. And although the Executive cannot supply a total Legislative omission, yet it is not admitted or believed that there is such a total omission in this case.
The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration. If, then, there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of His Britannic Majesty, and such evidence of his criminality, as would have justified his commitment for trial, had the offence been here committed; could the President, who is bound to execute the laws, have justified the refusal to deliver up the criminal, by saying, that the Legislature had totally omitted to provide for the case.
The Executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.
The department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration.
If, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?
This department, too, independent of judicial aid, which may, perhaps, in some instances, be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the casus fœderis occurs. And if the President should cause to be arrested under the treaty an individual who was so circumstanced as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge, by a writ of habeas corpus.
It is then demonstrated, that, according to the principles of the American Government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the Executive Department.
It remains to inquire whether, in exercising this power, and in performing the duty it enjoins, the President has committed an unauthorized and dangerous interference with judicial decisions.
That Thomas Nash was committed originally at the instance of the British Consul at Charleston, not for trial in the American courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. He would therefore, Mr. Marshall said, consider the case as if Nash had been delivered up instead of having been committed for trial. Admitting even this to have been the fact, the conclusions which have been drawn from it were by no means warranted.
Gentlemen had considered it as an offence against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. They had treated the subject as if it was the privilege of courts to condemn to death the guilty wretch arraigned at their bar, and that to intercept the judgment was to violate the privilege. Nothing can be more incorrect than this view of the case. It is not the privilege, it is the sad duty of courts to administer criminal judgment. It is a duty to be performed at the demand of the nation, and with which the nation has a right to dispense. If judgment of death is to be pronounced, it must be at the prosecution of the nation, and the nation may at will stop that prosecution. In this respect the President expresses constitutionally the will of the nation; and may rightfully, as was done in the case at Trenton, enter a nolle prosequi, or direct that the criminal be prosecuted no farther. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and a constitutional power. Had the President directed the Judge of Charleston to decide for or against his own jurisdiction, to condemn or acquit the prisoner, this would have been a dangerous interference with judicial decisions, and ought to have been resisted. But no such direction has been given, nor any such decision been required. If the President determined that Thomas Nash ought to have been delivered up to the British Government for a murder committed on board a British frigate, provided evidence of the fact was adduced, it was a question which duty obliged him to determine, and which he determined rightly. If, in consequence of this determination, he arrested the proceedings of a court on a national prosecution, he had a right to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the principal question. In conforming to this decision, the court has left open the question of its jurisdiction. Should another prosecution of the same sort be commenced, which should not be suspended but continued by the Executive, the case of Thomas Nash would not bind as a precedent against the jurisdiction of the court. If it should even prove that, in the opinion of the Executive, a murder committed on board a foreign fleet was not within the jurisdiction of the court, it would prove nothing more; and though this opinion might rightfully induce the Executive to exercise his power over the prosecution, yet if the prosecution was continued, it would have no influence with the court in deciding on its jurisdiction.
Taking the fact, then, even to be as the gentlemen in support of the resolutions would state it, the fact cannot avail them.
It is to be remembered, too, that in the case stated to the President, the Judge himself appears to have considered it as proper for Executive decision, and to have wished that decision. The President and Judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the Judge, the application was made to the President.
It has then been demonstrated—
1st. That the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States and Great Britain.
2d. That this question was proper for Executive, and not for Judicial decision; and,
3d. That in deciding it, the President is not chargeable with an interference with judicial decisions.
After trespassing so long, Mr. Marshall said, on the patience of the House, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument.
The subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it.
The gentleman from Pennsylvania had said that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, Mr. M. said, he concurred entirely with that gentleman. He believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in the bosom of an American. He could not pretend, and did not pretend to know the opinion of the Executive on this subject, because he had never heard the opinions of that department; but he felt the most perfect conviction, founded on the general conduct of the Government, that it could never surrender an impressed American to the nation which, in making the impressment, had committed a national injury.
This belief was in no degree shaken by the conduct of the Executive in this particular case.
In his own mind, it was a sufficient defence of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American, was obviously not contemplated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the Judge ought not to have acted under that decision, but the new circumstance ought to have been stated. Satisfactory as this defence might appear, he should not resort to it, because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground.
The President had decided that a murder committed on board a British frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twenty-seventh article of its treaty with the United States. He therefore directed Thomas Nash to be delivered to the British Minister, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the Judge.
If Thomas Nash had committed a murder, the decision was that he should be surrendered to the British Minister; but if he had not committed a murder, he was not to be surrendered.
Had Thomas Nash been an impressed American, the homicide on board the Hermione would, most certainly, not have been a murder.
The act of impressing an American, is an act of lawless violence. The confinement on board a vessel, is a continuation of the violence, and an additional outrage. Death committed within the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United States, would have been sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed, as to exclude the case of an impressed American liberating himself by homicide. He concluded with observing, that he had already too long availed himself of the indulgence of the House, to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged.
When Mr. Marshall had concluded, Mr. Dana rose and spoke against the resolutions.
An adjournment was then called for and carried—yeas 50, nays 48.
The House resumed the consideration of the report made on Thursday last, by the Committee of the whole House, to whom was referred the Message of the President of the United States, of the seventh ultimo, containing their disagreement to the motion referred to them on the twentieth ultimo; and the said motion being read, in the words following, to wit:
(See ante—Mr. Livingston's resolution, February 20.)[53]
Mr. Nicholas spoke in answer to Mr. Marshall.
The question was then taken that the House do agree with the Committee of the Whole in their disagreement to the same, and resolved in the affirmative—yeas 61, nays 35, as follows:
Yeas.—Willis Alston, George Baer, Bailey Bartlett, James A. Bayard, John Bird, John Brown, William Cooper, William Craik, John Davenport, Franklin Davenport, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, James H. Imlay, James Jones, John Wilkes Kittera, Henry Lee, Silas Lee, Samuel Lyman, James Linn, John Marshall, Abraham Nott, Harrison G. Otis, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, Richard Dobbs Spaight, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods.
Nays.—Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, John Condit, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Matthew Lyon, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Samuel Smith, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, and Robert Williams.
A motion was made to adjourn. Mr. Macon hoped the House would sit and decide the resolution proposed by the gentleman from Delaware, so as to have done with the business, and not to enter on another week with it; however, 54 rising for the adjournment, it was carried.
Mr. Bayard moved that the Committee of the whole House, to whom was referred the Message of the President, relative to Thomas Nash, alias Jonathan Robbins, and a resolution submitted by himself to the House, approbating the conduct of the President, and referred to that committee, be discharged from the further consideration thereof.
A long debate arose upon this motion, in which Messrs. Randolph, Davis, Jones, Nicholas, Livingston, and Eggleston, spoke against it—and Messrs. Bayard, Bird, Otis, Kittera, Varnum, Rutledge, Edmond, Shepard, and H. Lee, in favor of it; when the question was taken by yeas and nays, and carried in the affirmative—yeas 62, nays 35.
Mr. Parker observed that information had been received of a very gallant action having occurred between a frigate of the United States of 38 guns, commanded by Commodore Truxton, and a French vessel of 52 guns, which was extremely bloody, but valiant on the part of the United States commander. It was not usual to grant emoluments on account of any particular gallant action, to our officers, but to give approbation was common and consistent. In other countries, he said, monuments had been erected to commemorate such splendid victories.
As a testimonial of the regard of Congress for the officers who so bravely supported the flag of the United States, and to encourage similar acts of bravery, he would propose the following resolution:
Resolved, by the Senate and House of Representatives of the United States in Congress assembled, That a golden medal, emblematical of the late action between the United States frigate Constellation of 38 guns, and the French ship-of-war La Vengeance of 52 guns, be purchased under the Secretary of the Navy, and be presented to Captain Thomas Truxton, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising Navy.
The resolution was ordered to lie on the table.
Mr. Parker moved that the unfinished business be postponed for the purpose of taking up the resolution which he yesterday laid on the table, relative to the captain, officers, and crew of the Constellation; when
Mr. Nicholson said he wished it might not be taken into consideration until some official information was received upon the subject from the Secretary of the Navy, upon which resolutions can be grounded. In his opinion, the resolution of the gentleman did not go far enough. It had been said, that a young officer had voluntarily lost his life, rather than shrink from his duty, which he thought ought to be noticed. He was in favor of giving his approbation of the conduct of the officers and crew in more general terms than the resolution on the table contemplated.
After some observations from Messrs. Champlin and Harper, who were of the same opinion,
Mr. Parker said, he did not suppose a doubt could exist upon this subject sufficient to require any further information than had been received through the medium of the newspapers. He had seen a letter in the possession of the Secretary of the Navy, from Captain Baker, of the Delaware, who had every opportunity of knowing the situation of the enemy's frigate, was in the same harbor, and, being a nautical man, was of course able to give a correct opinion on her then situation, and the evident marks of the bravery of her antagonist with whom she contended—this was sufficient to satisfy his mind.
If, said Mr. P., gentlemen think the resolution does not go far enough, there is no one who will more cheerfully concur in offering other testimonies of approbation, than myself. With respect to the young officer,[54] whose gallantry and good conduct had been so highly spoken of, it was his intention to have brought forward a resolution for setting up his bust in a niche of the Capitol of the city of Washington.
Mr. P. concluded with observing that he had no objection to call for information from the Secretary of the Navy, and would therefore withdraw his motion.
Mr. Parker then moved that the House come to the following resolution, viz:
Resolved, That the Secretary of the Navy be requested to lay before this House any information he may possess, respecting the engagement which lately took place in the West Indies between the United States frigate Constellation and a French ship-of-war; and, also, respecting the conduct of James Jarvis, a midshipman on board the said frigate.
Mr. Smith moved to strike out the words in italics, which created considerable debate; when
Mr. Bird proposed to insert in lieu thereof, the following words: "And also upon the conduct of any officer or other person on board said frigate, who may have particularly signalized himself in the said action;" which Mr. B. supposed would meet the intention of the mover, and be less liable to objection than the words proposed to be stricken out.
Mr. Parker having consented to the modification, the resolution was agreed to.
Mr. Otis, from the Committee of Defence, reported a bill for establishing a Military Academy, and for better organizing the corps of Engineers and Artillerists.
The bill was proceeding to be read, when Mr. Otis suggested that as this bill contained much the same in detail as a report on the subject made by the Secretary of War, with which every gentleman was acquainted, he supposed the reading would not be necessary.
Mr. Macon said he should have no objection to its being read a first time, though he did not think it necessary; but he would give notice that it was his intention to move that the bill be rejected. He mentioned his reasons to be the expense of the measure generally, which it was an improper time to incur.
The bill having been read, he made the motion.
Mr. Otis and Mr. Champlin answered. Mr. Varnum supported the motion, which was at length negatived, 49 to 42; and the bill was referred to a Committee of the whole House.
Mr. Otis observed that it appeared to be the general opinion that the seat of Government would be removed to the Federal City, and that Congress would commence their next session at that place; and as some preliminary measures were necessary to be made previous thereto; and as it would be reposing too much power in the Commissioners who now act there to rely entirely on their reports; and as some measures must be reported and adopted before the end of the present session, he laid on the table the following resolution:
"Resolved, That a committee be appointed to consider what measures are expedient for Congress to adopt, preparatory to the removal of the seat of Government, with leave to report by bill or otherwise."
The House went into a committee on the report of the Committee of Claims on the petition of Amy Dardin, which was that the prayer of the petitioner ought not to be granted. Being taken up in the House, the propriety and impropriety of granting it was again contended, when there appeared in favor of the report 42, against it 42. The Speaker decided in the affirmative, so that the claim was not admitted.
The Speaker laid before the House a report from the Secretary of the Navy, in compliance with the instructions of the House, respecting the engagement which occurred between the frigate Constellation and a French ship-of-war. The report enclosed a letter from Captain Truxton, detailing the action, and also extracts of letters from the American Consul at Curaçoa, and one from the American agent at St. Kitts, respecting the disabled state of the French ship La Vengeur. As to any particular specimen of valor, the Secretary received no information; but that all the officers and men had acted with the most unexampled bravery and decorum was attested by the captain, whose good management was evinced by the singular success of the action. The Secretary mentions the singular bravery of James Jarvis, a Midshipman, who preferred death to quitting his post.
On motion of Mr. H. Lee, this report, together with a resolution proposed some days since by Mr. Parker, was referred to the Naval Committee.
Mr. Parker, from the Naval Committee, reported the following resolutions:
"Resolved, by the Senate and House of Representatives of the United States, in Congress assembled, That the President of the United States be requested to present to Captain Thomas Truxton, a golden medal, emblematical of the late action between the United States frigate Constellation, of 38 guns, and the French ship-of-war La Vengeur, of 54 guns, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising navy.
"Resolved, That the conduct of James Jarvis, a midshipman in said frigate, who gloriously preferred certain death to an abandonment of his post, is deserving of the highest praise; and that the loss of so promising an officer is a subject of national regret."
The House then proceeded to the consideration of these resolutions; the first of which being under consideration,
Mr. Randolph said, that inasmuch as he could not give his assent to these resolutions, he felt impressed with the propriety of stating the reasons which would govern his vote.
It was not with any intention to detract from the deserved reputation which had been so nobly earned by the captain, officers, and crew of the Constellation; still less to withhold the well-earned applause due to that gallant youth who had sacrificed his life in the prosecution of his duty. It was to the first of these resolutions, only, that he should deny his concurrence. He should do this, unless the gentlemen of the Naval Committee should show to him that it was the duty of the commander of the Constellation to persist in the chase, and compel to action a ship of such superior force. This conduct was, in his opinion, rash; and, when the situation of the United States and France was taken into consideration, it was peculiarly unadvisable. Our Commissioners were at this time in the capital of that country negotiating peace. How did the pursuit of this ship—the forcing her into an action, which ended in the crippling of both vessels—comport with that protection which was to be afforded to our commerce by the Constellation?
Mr. R. said that his duty obliged him to act upon his own opinion; and, however singular it may appear, he should vote against the first resolution, unless the gentleman who brought it forward would make it appear that it was the duty of Captain Truxton to compel the Vengeance to come to action, when he knew her to be of such superior force. The second resolution met his most hearty approbation.
Mr. Parker said, what the present state of things between the two countries might be, in the opinion of his colleague, he could not say; but Mr. P. conceived it was no other than it was at the time Congress passed a bill which prescribed the conduct of our naval commanders. In that bill they were authorized to take or destroy all French armed vessels: under these orders Captain Truxton left this country, and, in obedience to instructions to that effect, he pursued and engaged this vessel, which, though of superior force, he had beaten. Had he not attacked her, it is most probable she would have proceeded against our commerce. The law having been passed by Congress, if the President of the United States had not given orders conformably thereto, he would have been subject to impeachment. He, therefore, presumed it to be his duty; and, most certainly, such orders being given to the commanders, they were bound to conform to them. Mr. P. thought that this and greater approbation ought to be expressed by Congress for conduct so brave and unprecedented. In some countries monuments had been raised, but this was unnecessary, though merited. Our naval exertions were very recent and confined, but an instance of extraordinary valor having occurred it ought to be honorably and suitably noticed.
Mr. Nicholas said, however he might agree with his colleague (Mr. Randolph) in a desire that no conduct should be encouraged that would tend to aggravate France in the present situation of things, he could not agree with him in his present sentiments. While we were in a state of actual, though not of declared war, Mr. N. thought it was naturally to be expected that our commanders would act in their complete military character, when our ships were arrayed for battle, and power given to act up to the full rigor which the laws of honor and of war would warrant. In the conduct of the captain, as well as the crew, Mr. N. said, he saw nothing but what was extremely laudable, and highly meriting approbation.
Mr. Lyon said he rose to request the division of the question on the resolutions. He was disposed to vote for the latter resolution, and not for the former.
The Speaker declared they would be divided, and that the question before the House was on the agreeing to the first resolution.
Mr. Lyon observed that he had voted for the equipment of the three frigates under an impression that they would be employed solely for the protection of the commerce of this country: but now he found himself called upon to give thanks or praise to the commander of one of those frigates, and for what? for going out of the station assigned to him, as the most proper for the protection of the trading vessels of this country, in chase of a ship-of-war of much superior force; and for reducing the ship under his command, as well as that of his opponent, to a mere wreck. Mr. L. said he had seen nothing in the orders which had been published directing him to do this, nor did he think policy or prudence dictated the measure. Let all our naval commanders be excited to follow this example; let them play or fight each of them their vessel against a French vessel-of-war of superior force in the same way, and our naval force is crippled, while the French will scarcely feel their loss; then our commerce would be wholly at their mercy. Besides these considerations, what is there to defend that commerce, on the station left destitute by the Constellation, while she is refitting. For his part he was as glad and proud as any gentleman that our officers, and our sailors, and our marines, had behaved gallantly and done themselves and their country honor, in the late action, but he did not feel himself bound, under existing circumstances, to give distinguished praise to the conduct which produced it; he should therefore vote against the resolution.
Mr. J. Brown would vote for this resolution for the very reason which some gentlemen urged for voting against it. He thought the very fact of chasing a ship of superior force, and forcing her to an action which had been attended with success, was a commendable act. This to him would be the only inducement for paying so high a mark of national respect. If it had been an attack upon a vessel of inferior force, he should not think it worth notice. The objection was partly on account of the French ship being of superior force; surely this would rather be a reason why we should have vessels of greater force than we have now; therefore he hoped the worthy member would suffer that brave officer to go to sea next time with a 74-gun ship under his command, when he would doubtless bring the enemy to a good account.
The yeas and nays were called on this resolution and carried—yeas 87, nays 4, as follows:
Yeas.—Willis Alston, George Baer, Bailey Bartlett, John Bird, Phanuel Bishop, Jonathan Brace, John Brown, Robert Brown, Samuel J. Cabell, Christopher G. Champlin, William C. C. Claiborne, John Condit, William Cooper, Samuel W. Dana, John Davenport, Thomas T. Davis, John Dawson, John Dennis, George Dent, Joseph Dickson, William Edmond, Joseph Eggleston, Lucas Elmendorph, Thomas Evans, Abiel Foster, Dwight Foster, John Fowler, Jonathan Freeman, Albert Gallatin, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Archibald Henderson, William H. Hill, David Holmes, Benjamin Huger, James H. Imlay, James Jones, Aaron Kitchell, John Wilkes Kittera, Henry Lee, Silas Lee, Michael Leib, Samuel Lyman, James Linn, Nathaniel Macon, John Marshall, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, Harrison G. Otis, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, John Smilie, John Smith, Samuel Smith, Richard Stanford, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Robert Williams, Lemuel Williams, and Henry Woods.
Nays.—George Jackson, Matthew Lyon, John Randolph, and Thomas Sumter.
The other resolution was adopted unanimously.
The House, according to the order of the day, again resolved itself into a Committee of the whole House on the report of the committee appointed, on the 5th instant, to inquire into the expediency of authorizing the President of the United States to appoint an agent to purchase of the Indians a tract of land on the south side of Lake Superior, which shall include the great copper bed; 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, by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper mines on the south side of Lake Superior, and to ascertain whether the Indian title to such lands as might be required for the use of the United States, in case they should deem it expedient to work the said mines, be yet subsisting; and, if so, the terms on which the same can be extinguished: And that the said agent be instructed to make report to the President, in such time as the information he may collect may be laid before Congress at their next session.
Ordered, That the Clerk of this House do carry the said resolution to the Senate, and desire their concurrence.
The House then resolved itself into a committee on the bill to make further progress for the removal and accommodation of the Government of the United States.
A motion was then made to fill a blank for the accommodation of the household of the President, about which considerable conversation occurred; when Mr. Rutledge moved that the committee rise, in order that time may be given for learning the amount of money wanting for this object, and because he supposed the Chairman of the committee, who was absent, might be able to give that information. The motion was afterwards withdrawn, but renewed by the Speaker, and at length carried.
Mr. Harper observed that in some of the States lands were received in satisfaction of judgments, which also was the case in such places where the United States were plaintiffs. To remedy what he conceived an evil, he laid on the table the following resolution: