Yeas.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright.
Nays.—Messrs. Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White.
On the question, Shall this bill pass as amended? it was determined in the affirmative—yeas 18, nays 8, as follows:
Yeas.—Messrs. Baldwin, Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White.
Nays.—Messrs. Anderson, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright.
So it was Resolved, That this bill pass, that it be engrossed, and that the title thereof be "An act to carry into effect the several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven."
In Executive session, the following Message was received from the President of the United States:
Gentlemen of the Senate:
The cession of the Spanish province of Louisiana to France, and perhaps of the Floridas, and the late suspension of our right of deposit at New Orleans, are events of primary interest to the United States. On both occasions, such measures were promptly taken as were thought most likely amicably to remove the present and to prevent future causes of inquietude. The objects of these measures were to obtain the territory on the left bank of the Mississippi, and eastward of that, if practicable, on conditions to which the proper authorities of our country would agree; or, at least, to prevent any changes which might lessen the secure exercise of our rights. While my confidence in our Minister Plenipotentiary at Paris is entire and undiminished, I still think that these objects might be promoted by joining with him a person sent from hence directly, carrying with him the feelings and sentiments of the nation, excited on the late occurrence, impressed by full communications of all the views we entertain on this interesting subject; and thus prepared to meet and to improve, to a useful result, the counter-propositions of the other contracting party, whatsoever form their interests may give to them, and to secure to us the ultimate accomplishment of our object.
I therefore nominate Robert R. Livingston to be Minister Plenipotentiary, and James Monroe to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with the First Consul of France, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof.
But as the possession of these provinces is still in Spain, and the course of events may retard or prevent the cession to France being carried into effect, to secure our object, it will be expedient to address equal powers to the Government of Spain also, to be used only in the event of its being necessary.
I therefore nominate Charles Pinckney to be Minister Plenipotentiary, and James Monroe, of Virginia, to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with His Catholic Majesty, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof.
Jan. 11, 1803.
TH. JEFFERSON.
The Messages and papers therein referred to were read, and ordered that they severally lie for consideration.
Mr. Brown, from the State of Kentucky, attended.
Aaron Burr, Vice President of the United States, and President of the Senate, attended.
The Vice President laid before the Senate a certificate of the election of Samuel M'Clay, Esq. of Northumberland county, and State of Pennsylvania, to be a Senator of the United States from the fourth day of March next, inclusive; and it was read and ordered to lie on file.
The Vice President communicated a letter from the Clerk of the House of Representatives of the State of Delaware, enclosing the credentials of Samuel White, Esq., elected a Senator of the United States for the term of six years, commencing on the 4th day of March next; and they were read.
Ordered, That they lie on file.
James Ross, from Pennsylvania, attended.
Mr. Ross presented the several representations and memorials of Richard Basset, Egbert Benson, Benjamin Bourne, William Griffith, Samuel Hitchcock, B. P. Key, C. Magill, Jeremiah Smith, G. K. Taylor, William Tilghman, and Oliver Wolcott, judges of the circuit courts under the late act, entitled "An act to provide for the more convenient organization of the Courts of the United States;" stating that, since the repeal of the said act, no law had been made for assigning to them the execution of any Judicial functions, nor has any provision been made for the payment of their stipulated compensations; and most respectfully requesting Congress to review the existing laws with respect to the officers in question; and the memorials were read.
Ordered, That they be referred to Messrs. Morris, Ross, and Dayton, to consider and report thereon, and that the memorials be printed for the use of the Senate. The memorial is as follows
To the Honorable the Senate and House of Representatives in Congress assembled:
The undersigned most respectfully submit the following resolution and memorial.
By an act of Congress passed on the thirteenth day of February, in the year of our Lord one thousand eight hundred and one, entitled "An act to provide for the more convenient organization of the courts of the United States," certain judicial offices were created, and courts established, called circuit courts of the United States.
In virtue of appointments made under the Constitution of the United States, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior.
During the last session an act of Congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to your memorialists the execution of any judicial functions, nor has any provision been made for the payment of their stipulated compensations.
Under these circumstances, and finding it expressly declared in the Constitution of the United States, that "The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office," the undersigned, after the most deliberate consideration, are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the Judicial Department, have been impaired.
With this sincere conviction, and influenced by a sense of public duty, they most respectfully request of Congress to review the existing laws which respect the offices in question, and to define the duties to be performed by the undersigned, by such provisions as shall be consistent with the constitution, and the convenient administration of justice.
The right of the undersigned to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the Judicial Department, which, in the opinion of Congress, public convenience may recommend. This right, however, involving a personal interest, will be cheerfully submitted to Judicial examination and decision, in such manner as the wisdom and impartiality of Congress may prescribe.
That judges should not be deprived of their offices or compensations without misbehavior appears to the undersigned to be among the first and best established principles of the American constitutions; and in the various reforms they have undergone, it has been preserved and guarded with increased solicitude.
On this basis the Constitution of the United States has laid the foundation of the Judicial Department, and expressed its meaning in terms equally plain and peremptory.
This being the deliberate and solemn opinion of the undersigned, the duty of their stations requires that they should declare it to the Legislative body. They regret the necessity which compels them to make the representation, and they confide that it will be attributed to a conviction that they ought not voluntarily to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community.
Agreeably to the order of the day, the Senate took into consideration the report of the committee on the several memorials of the judges, under the late act to provide for the more convenient organization of the courts of the United States. The committee report as follows:
That the petitioners were judges of certain courts, inferior to the Supreme Court, constituted by an act of the 13th of February, 1801, and duly commissioned to hold their offices during good behavior.
That, while holding and exercising their offices, an act was passed on the 8th of March last, to repeal the said act of the 13th of February, 1801, and transfer the duties of the said judges from them to others.
That a question has arisen whether, by reason of the premises, the said petitioners be deprived of their offices.
That this question, depending on the construction of the laws and Constitution of the United States, is not properly cognizable by the Senate.
The committee, therefore, conceive it improper either to give reasons or express opinions; but they consider it as a question of high and serious import, and believe that a speedy investigation and final decision is of great moment to the commonwealth.
Wherefore, they submit the following resolution.
Resolved, That the President of the United States be requested to cause an information, in the nature of a quo warranto, to be filed by the Attorney General against Richard Basset, one of the said petitioners, for the purpose of deciding judicially on their claims.
Mr. Morris said, I rise, Mr. President, as chairman of the committee whose report you have just had the goodness to read, for the purpose of explaining their reasons. If this were a common or an ordinary occasion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure so plain, so easy, so simple, would require neither argument nor persuasion. It would be adopted for its own interior evidence, and from the general sense of propriety. Unhappily, sir, this is not the case. Serious differences of opinion have existed, and still exist on the subject with which it is connected. From these have arisen disputes, divisions, bickerings. There is not, I fear, in the minds of men, that calm impartiality which is needful to fair investigation. There remains much of prejudice, of irritability.
Your committee have pursued the course which appeared to be proper, not only in itself, but according to the existent circumstances. Gentlemen will easily see that they might have made an elaborate report, containing a long detail of reasons to establish a favorite conclusion; and a slight knowledge of the forms of business will show, that they might have placed that report at length on your journals. But would this have been right? Would it have tended to conciliate? Would it have been a proper return for the unanimity with which your committee was chosen? Surely it would not; and is it not the duty of every good citizen to heal, as far as possible, the wounds of society? To calm those irritations which disturb its repose? To remove all things which may alarm, torment, or exacerbate?
Mr. President, your committee have no intention, no wish to revive a discussion of points already settled. While the act of last session was in agitation, we opposed it steadily, pertinaciously. But that act has become a law, and to the authority of the law we bow submissively. While in suspense, we thought it our duty, as Senators, to oppose it. But since it has been adopted, according to the forms of the constitution, we know that as citizens we are bound to obey. With these deep impressions, then, of what is due to the supreme law of our land, I shall proceed to the report of your committee, and endeavor to explain its several parts.
Gentlemen will perceive that the question which the memorialists have submitted to our investigation is, whether the law of last session has deprived them of their office of judge. Your committee consider this question as not being cognizable by the Senate. It is not for the Senate, nor the Representatives, nor both combined, to interpret their own acts. We are a part of the Legislature. A part of the Executive power is also delegated to us. If the Judiciary be added, it will constitute a tyranny. It is, indeed, the very definition of tyranny which has been given by those best acquainted with the subject. This Senate can have no wish to arrogate power. It is too just, too wise. If a sense of propriety did not prevent, prudence alone would forbid the attempt. This body is too feeble for the exercise of so much authority. Its form, its constitution, the mode and manner of its creation and existence, the strength and structure of its members, render it incapable of sustaining a greater weight of power.
Your committee, sir, have ventured to express their belief, that the question should be speedily settled. I learned in early youth, from the volumes of professional science, that it is expedient for the Commonwealth that a speedy end should be put to litigation; and if it be important that litigation should cease between man and man, how much more important that a litigated point of public right, which interests and agitates the whole community, should be laid at rest? And if this be important in the general course of things, is it not, under present circumstances, indispensable? And how is it to be effected? By an exertion of Legislative might; by force. Remember, force will excite resistance. Such is the nature of the human heart. Free citizens revolt with disdain at the exercise of force. But judgment commands their prompt, their willing obedience. When the law is known, when it is declared by the proper tribunals, all will bow to its authority. You, then, may expect a full, and quiet, and general submission. But while it is litigated and uncertain what the law is, differences will exist, and discord will prevail.
It is under these impressions, sir, that your committee have presumed to offer the resolutions on your table; and as some of the technical terms may not be familiar to every gentleman, it may be proper to state the kind of proceeding which is recommended.
The attorney general, or, as he is denominated in French idiom, the public accuser, will institute, before the proper tribunal, an inquiry by what authority these men claim to hold and exercise the office of judge. It will then be incumbent upon them, either to disclaim the office, and then there is an end of the question; or else (claiming it) to establish their right. And to do this, they must prove two things; first, that the office exists, and secondly, that of right it belongs to them. Failing of either, their claim is gone.
Now, sir, it may be well to consider the decisions which may be made, and their probable effect. I take it for granted, that these gentlemen, who have asked a Judicial decision, will not disclaim, and that whatever judgment may be given in the first instance, the cause will be brought up to the Supreme Court. If the judgment, in the last resort, should be (as it probably would be) against the claim, all complaint will be quieted, and all opposition will cease. Some then, indeed, might triumph. For my own part, I should find in it great consolation—the consolation of knowing that, however wrong may have been my own opinions, the Supreme Legislature of my country have done right. The pride of opinion might, indeed, be wounded; but God forbid, that from motives of pride, or from any other motive, I should hear, without deep concern, that the Legislature of my country have violated that sacred charter from which they derive their authority!
But suppose an opinion different, contrarient, or the very reverse (for that also is possible.) Will the judges rudely declare that you have violated the constitution, unmindful of your duty, and regardless of your oath? No. With that decency which becomes the Judicial character; that decency which upholds national dignity and impresses obedience on the public will; that decency, the handmaid of the graces, which more adorns a magistrate than ermine, aye, than royal robes; with that decency which so peculiarly befits their state and condition, they will declare what the Legislature meant. They will never presume to believe, much less to declare, that you meant to violate the constitution. There will be no dangerous and hateful clashing of public authorities. They will never question the exercise of that high discretion with which you are invested. They will not deny your full supremacy. They will not examine into your motives, nor assign improper views. They will respect you so long as they preserve a due respect for themselves. They will declare, that in assigning duties to one officer, and taking them from another, you have to consult only your own convictions of what the interest or convenience or the people may require. They will modestly conclude, that you did not mean to abolish the offices which the constitution had forbidden you to abolish; and, therefore, finding that it was not your intention to abolish, they will declare that the offices still exist. Such, sir, would be the language of your supreme Judiciary, from the high sense they entertain of their duty. And, if it were decent to suggest in this Senate, that they were lost to a sense of duty, can it be believed, that a few feeble judges will dare oppose themselves to the power of the Legislature?
The Vice President rose, and said he must call the attention of the Senate to the point in discussion, which was, whether the Senate would request the President to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. On this question, it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law.
Mr. Jackson said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. He thought, therefore, it could not be out of order to show that that act deprived them of their offices.
Mr. Wright premised, that he would endeavor to confine his remarks to the point before the Senate. He felt no disposition to travel again over the ground which had been traversed at the last session.
The petition was addressed to both Houses, and prayed for two things; first, that Congress, in their Legislative capacity, would assign to the petitioners some Judicial duties; and secondly, that they would authorize a Judicial investigation of their claim to compensation. The committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. Instead of that, they had reported a resolution, which, if adopted, would be neither a grant nor a denial of the prayer of the petition. In doing this, the committee had exceeded their powers, and proposed a measure which the Senate itself was not authorized to adopt.
Mr. W. took a review of the constitutional powers of the Senate, in its Legislative and Executive capacities, and inquired, Have we any constitutional authority to make such a request of the President? In what part of the constitution is such power delegated to this House? Are we to make the request as private gentlemen, or as a constitutional organ of the Government. If as private gentlemen, the act would clearly be a nullity; the President would still be at liberty to comply with the request, or not, as he might think proper. If as a constitutional organ of the Government, where is the power given to the Senate? And what would be the remedy if he should refuse to comply? The Senate is the constitutional adviser of the President in the formation of treaties, and in the appointment of officers, &c. The constitution expressly declares that the President shall exercise these powers by and with the advice and consent of the Senate. Here, then, it is their right and their duty to advise him. But the constitution further says: "He shall take care that the laws be faithfully executed." Have the Senate any authority to advise him as to the faithful execution of the laws? They can go no further than they are expressly commissioned by the constitution. The specification of particular Executive powers, by the constitution, is a denial of all others. Admissio unius est exclusio alterius; and, as the constitution has given no power to this effect, it follows that no such power can be exercised by the Senate. If the courts have power to try the validity of laws of Congress, they can exercise that power as well without the authority of this resolution as with it. If they have not the power, neither this House nor the Legislature can give it them. The duties and the powers of the Supreme Court are defined by the constitution. Should the Senate, then, adopt the resolution, the Supreme Court would have no power to act under it, unless that power is given by the constitution. Let us, then, examine the authority of this court. The constitution says: "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." Will the gentlemen say that these judges are ambassadors, other public ministers or consuls, or that they are a state? If not, the Supreme Court can have no jurisdiction of the case, and the committee have imposed upon the Senate a resolution which they had no authority to submit. As to the law of the last session, by which these judges had been deprived of their offices, Mr. W. had no fear that the Supreme Court, or any body else would attempt to set it aside. The whole nation has approved the measure, as many of those who opposed it have fatally experienced.
The question on agreeing to the resolution was now taken, and determined in the negative—yeas 13, nays 15, as follows:
Yeas.—Messrs. Dayton, Dwight, Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Plumer, Ross, Tracy, Wells, and White.
Nays.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, Nicholas, Stone, Sumter, and Wright.
Ordered, That the memorialists have leave to withdraw their memorial.
After the Senate had finished its deliberations upon the Legislative business before it—
Mr. Ross rose and said, that although he came from a part of the country where the late events upon the Mississippi had excited great alarm and solicitude, he had hitherto forborne the expression of his sentiments, or to bring forward any measure relative to the unjustifiable, oppressive conduct of the officers of the Spanish Government at New Orleans. He had waited thus long in the hope that some person, more likely than himself to conciliate and unite the opinions of a majority of the Senate, would have offered efficacious measures for their consideration; but, seeing the session now drawing to a close, without any such proposition, he could not reconcile a longer silence either to his own sense of propriety or to the duty he owed to his constituents. He would not consent to go home without making one effort, however feeble or unsuccessful, to avert the calamity which threatened the Western country. Present appearances, he confessed, but little justified the hope that any thing he might propose would be adopted, yet it would at least afford him some consolation, hereafter, that he had done his duty, when the storm was approaching, by warning those who had power in their hands of the means which ought to be employed to resist it.
He was fully aware that the Executive of the United States had acted; that he had sent an Envoy Extraordinary to Europe. This was the peculiar province, and perhaps the duty of the President. He would not say that it was unwise in this state of our affairs to prepare for remonstrance and negotiation, much less was he then about to propose any measure that would thwart negotiation, or embarrass the President. On the other hand, he was convinced that more than negotiation was absolutely necessary, that more power and more means ought to be given to the President, in order to render his negotiations efficacious. Could the President proceed further, even if he thought more vigorous measures proper and expedient? Was it in his power to repel and punish the indignity put upon the nation? Could he use the public force to redress our wrongs? Certainly not. This must be the act of Congress. They are now to judge of ulterior measures; they must give the power, and vote the means to vindicate, in a becoming manner, the wounded honor and the best interests of the country.
Mr. R. said, he held in his hands certain resolutions for that purpose, and, before he offered them to the Senate, he would fully explain his reasons for bringing them forward and pressing them with earnestness, as the best system the United States could now pursue.
It was certainly unnecessary to waste the time of that body in stating that we had a solemn explicit treaty with Spain; that this treaty had been wantonly and unprovokedly violated, not only in what related to the Mississippi, but by the most flagrant, destructive spoliations of our commerce, on every part of the ocean, where Spanish armed vessels met the American flag. These spoliations were of immense magnitude, and demanded the most serious notice of our Government. They had been followed by an indignity and a direct infraction of our treaty relative to the Mississippi, which bore an aspect not to be dissembled or mistaken.
To the free navigation of that river we had an undoubted right from nature, and from the position of our Western country. This right, and the right of deposit in the island of New Orleans, had been solemnly acknowledged and fixed by treaty in 1795. That treaty had been in actual operation and execution for many years; and now, without any pretence of abuse or violation on our part, the officers of the Spanish Government deny the right, refuse the place of deposit, and add the most offensive of all insults, by forbidding us from landing on any part of their territory, and shutting us out as a common nuisance.
By whom has this outrage been offered? By those who have constantly acknowledged our right, and now tell us that they are no longer owners of the country! They have given it away, and, because they have no longer a right themselves, therefore, they turn us out, who have an undoubted right! Such an insult, such unprovoked malignity of conduct, no nation but this would affect to mistake. And yet we not only hesitate as to the course which interest and honor call us to pursue, but we bear it with patience, tameness, and apparent unconcern.
Sir, said Mr. R., whom does this infraction of the treaty and the natural rights of this country most intimately affect? If the wound inflicted on national honor be not sensibly felt by the whole nation, is there not a large portion of your citizens exposed to immediate ruin by a continuance of this state of things? The calamity lights upon all those who live upon the Western waters. More than half a million of your citizens are by this cut off from a market. What would be the language, what would be the feelings of gentlemen in this House, were such an indignity offered on the Atlantic coast? What would they say if the Chesapeake, the Delaware, or the Bay of New York were shut up, and all egress prohibited by a foreign power? And yet none of these waters embrace the interests of so many as the Mississippi. The numbers and the property affected by shutting this river, are greater than any thing that could follow by the blockade of a river on the Atlantic coast. Every part of the Union was equally entitled to protection, and no good reason could be offered why one part should be less attended to than another.
Fortunately for this country, there could be no doubt in the present case; our national right had been acknowledged, and solemnly secured by treaty. The treaty had been long in a state of execution. It was violated and denied without provocation or apology. The treaty then was no security. This evident right was one, the security of which ought not to be precarious: it was indispensable that the enjoyment of it should be placed beyond all doubt. He declared it therefore to be his firm and mature opinion, that so important a right would never be secure, while the mouth of the Mississippi was exclusively in the hands of the Spaniards. Caprice and enmity occasion constant interruption. From the very position of our country, from its geographical shape, from motives of complete independence, the command of the navigation of the river ought to be in our hands.
We are now wantonly provoked to take it. Hostility in its most offensive shape has been offered by those who disclaim all right to the soil and the sovereignty of that country—a hostility fatal to the happiness of the Western world. Why not seize then what is so essential to us as a nation? Why not expel the wrongdoers?—wrongdoers by their own confession, to whom by a seizure we are doing no injury. Paper contracts, or treaties, have proved too feeble. Plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it: do justice to yourselves when your adversaries deny it; and leave the event to Him who controls the fate of nations.
Why submit to a tardy, uncertain negotiation, as the only means of regaining what you have lost: a negotiation with those who have wronged you; with those who declare they have no right, at the moment they deprive you of yours? When in possession, you will negotiate with more advantage. You will then be in the condition to keep others out. You will be in the actual exercise of jurisdiction over all your claims; your people will have the benefits of a lawful commerce. When your determination is known, you will make an easy and an honorable accommodation with any other claimant. The present possessors have no pretence to complain, for they have no right to the country by their own confession. The Western people will discover that you are making every effort they could desire for their protection. They will ardently support you in the contest, if a contest becomes necessary. Their all will be at stake, and neither their zeal nor their courage need be doubted.
Suppose that this course be not now pursued. Let me warn gentlemen how they trifle with the feelings, the hopes, and the fears of such a body of men, who inhabit the Western waters. Let every honorable man put the question to himself; how would half a million round him be affected by such a calamity, and no prompt measures taken by the Government to redress it? These men have arms in their hands; the same arms with which they proved victorious over their savage neighbors. They have a daring spirit; they have ample means of subsistence; and they have men disposed to lead them on to revenge their wrongs. Are you certain that they will wait the end of negotiation? When they hear that nothing has been done for their immediate relief, they will probably take their resolution and act. Indeed, from all we have heard, there is great reason to believe that they will, or that they may have already taken that resolution.
They know the nature of the obstruction, they know the weakness of the country; they are sure of present success, and they have a bold river to bear them forward to the place of action. They only want a leader to conduct them, and it would be strange, if with such means and such a spirit, a leader should not soon present himself.
Suppose they do go, and do chase away the present oppressors, and that in the end they are overpowered and defeated by a stronger foe than the present feeble possessors. They will never return to you, for you cannot protect them. They will make the best compromise they can with the power commanding the mouth of the river, who, in effect, has thereby the command of their fortunes. Will such a bargain be of light or trivial moment to the Atlantic States. Buonaparte will then say to you, my French West India colonies, and those of my allies, can be supplied from my colony of Louisiana, with flour, pork, beef, lumber, and any other necessary. These articles can be carried by my own ships, navigated by my own sailors. If you, on the Atlantic coast, wish to trade with my colonies in those articles, you must pay fifteen or twenty per cent, of an impost. We want no further supplies from you, and revenue to France must be the condition of all future intercourse. What will you say to this? It will be vain to address your Western brethren, and complain your commerce is ruined, your revenue dwindles, and your condition is desperate. They will reply that you came not to their assistance in the only moment you could have saved them; that you balanced between national honor and sordid interest, and suffered them to be borne down and subdued, at a time when for a trifle you could have secured the Mississippi; that now their interest must be consulted, and it forbade any assistance to you, when following in the same train of ruin which overwhelmed them. If the evil does not immediately proceed the full length of disunion, yet the strength, the unity of exertion, the union of interest will be gone. We are no longer one people, and representatives from that part of the country in our public councils, will partake of the spirit and breathe the sentiments of a distinct nation; they will rob you of your public lands; they will not submit to taxes; they will form a girdle round the Southern States, which may be denominated a foreign yoke, and render the situation of that country very precarious as to its peace and past connections. Indeed, every aspect of such a state of things is gloomy and alarming to men who take the trouble of reflecting upon it.
Where is the nation, ancient or modern, that has borne such treatment without resentment of resistance? Where is the nation that will respect another that is passive under such humiliating degradation and disgrace? Your outlet to market closed, next they will trample you under foot upon your own territory which borders upon theirs! Yet you will not stir, you will not arm a single man; you will negotiate! Negotiation alone, under such circumstances, must be hopeless. No. Go forward, remove the aggressors, clear away the obstructions, restore your possession with your own hand, and use your sword if resistance be offered. Call upon those who are most injured, to redress themselves; you have only to give the call, you have men enough near to the scene, without sending a man from this side the mountains; force sufficient, and more than sufficient, for a prompt execution of your orders. If money be an object, one half of the money which would be consumed and lost by delay and negotiation, would put you in possession; then you may negotiate whether you shall abandon it and go out again.
I say, also, let us go and redress ourselves; you will have the whole nation with you. On no question since the Declaration of Independence, has the nation been so unanimous as upon this. We have at different times suffered great indignity and outrages from different European Powers; but none so palpable, so inexcusable, so provoking, or of such magnitude in their consequences, as this. Upon none has public opinion united so generally as this. It is true we have a lamentable division of political opinion among us, which has produced much mischief, and may produce much greater than any we have yet felt. On this question, party spirit ought to sink and disappear. My opinions are well known, and are not likely to change; but I candidly, and with all possible sincerity, declare my conviction to be clear, that there will not be a dissenting voice in the Western country if this course be taken; that so far as my own abilities go, they shall be exerted to the utmost to support it; and I know that my friends on this floor with whom I have long thought and acted, have too high a regard for the national honor, and the best interests of their country, to hesitate a moment giving the same pledge of their honest determination to support and render these measures effectual, if taken: call them ours, if you please, we take the responsibility, and leave the execution of them with you. For, as to myself or my friends, no agency is wished, except that of uniting with you in rousing the spirit, and calling out the resources of the country, to protect itself against serious aggression, and the total subjection and loss of the Western country.
Mr. R. then read his resolutions, which are as follows:
"Resolved, That the United States have an indisputable right to the free navigation of the river Mississippi, and to a convenient place of deposit for their produce and merchandise in the island of New Orleans.
"That the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest.
"That it does not consist with the dignity or safety of this Union to hold a right so important by a tenure so uncertain.
"That it materially concerns such of the American citizens as dwell on the Western waters, and is essential to the union, strength, and prosperity of these States, that they obtain complete security for the full and peaceable enjoyment of such their absolute right.
"That the President be authorized to take immediate possession of such place or places, in the said island, or the adjacent territories, as he may deem fit and convenient for the purposes aforesaid; and to adopt such other measures for obtaining that complete security as to him in his wisdom shall seem meet.
"That he be authorized to call into actual service any number of the militia of the States of South Carolina, Georgia, Ohio, Kentucky, Tennessee, or of the Mississippi Territory, which he may think proper, not exceeding fifty thousand, and to employ them, together with the military and naval forces of the Union, for effecting the objects above mentioned.
"That the sum of five millions of dollars be appropriated to the carrying into effect the foregoing resolutions, and that the whole or any part of that sum be paid or applied, on warrants drawn in pursuance of such directions as the President may, from time to time, think proper to give to the Secretary of the Treasury."[69]
The Vice President communicated the credentials of Theodorus Bailey, appointed a Senator by the State of New York, to take his seat after the third day of March next; which were read, and ordered to lie on file.
In Executive session, the bill, entitled "An act making further provision for the expenses attending the intercourse between the United States and foreign nations," was read the third time.
On the question, Shall this bill pass? it was determined in the affirmative—yeas 14, nays 12, as follows:
Yeas.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, S. T. Mason, Nicholas, Sumter, and Wright.
Nays.—Messrs. Dayton, D. Foster, Hillhouse, Howard, J. Mason, Morris, Olcott, Plumer, Ross, Stone, Wells and White.
So it was Resolved, That this bill pass.[70]
Mr. White, of Delaware, rose and addressed the Chair as follows: Mr. President, on this subject, which has on a former day been discussed with so much ability, and with so much eloquence, by my friend from Pennsylvania, the honorable mover of the resolutions, I shall submit the few observations that I may make, in as concise a manner as I am capable of; for it is very far from my wish to occupy the time or attention of the Senate unnecessarily. The resolutions on your table I approve of in their full extent; I believe they express the firm and manly tone that at this moment is especially becoming the dignity of the Government to assume; I believe they mark out a system of measures, which, if promptly pursued, will be honorable to the nation, and equal to the accomplishment of the important object which gentlemen on all sides seem to have in view. These alone, with me, would be sufficient inducements to yield them my feeble support; but in addition to these, and to the thorough conviction of my own mind as to the course I ought to pursue, I have the happiness of being supported in my opinions on this subject by the unequivocal expression of the sentiment of the State to which I have the honor to belong.
It was early seen, Mr. President, and required but little penetration to discover, that adventurers emigrating beyond the mountains, and settling on the Western waters, must possess the free navigation of the Mississippi, it being their only outlet to the ocean. This important privilege it became necessary on the part of the Government of the United States to secure by treaty, and not leave to the capricious will of whatever nation who might in future hold the territory at the mouth of the river. Accordingly, in the 4th and 23d articles of our Treaty with Spain, I find on this subject the following stipulation:
"Art. 4. It is likewise agreed that the western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel or bed of the river Mississippi, from the northern boundary of the said States to the completion of the 31st degree of latitude north of the equator. And His Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention."
"Art. 22. The two high contracting parties, hoping that the good correspondence and friendship which happily reigns between them will be further increased by this treaty, and that it will contribute to augment their prosperity and opulence, will in future give to their mutual commerce all the extension and favor which the advantages of both countries may require.
"And in consequence of the stipulations contained in the 4th article, His Majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores; and His Majesty promises either to continue this permission, if he finds, during that time, that it is not prejudicial to the interests of Spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the Mississippi, an equivalent establishment."
This instrument, Mr. President, it is known, for a time, quieted the fears and jealousies of our Western brethren; they supposed it had removed for ever the possibility of any future embarrassment to their commerce on those waters. And after it had been proclaimed as the law of the land—after it had been ratified by both nations, and become obligatory upon the faith and honor of each, who could have thought otherwise? Yet, sir, it has happened otherwise. This place of deposit at New Orleans, secured to our citizens by the article last read, has been recently wrested from their hands by the authority of the Spanish Government, and no other equivalent one assigned, where, after more than two thousand miles of boat navigation, they may disembark their produce in order to be shipped for sea; and without this advantage the navigation of the river is to them but an empty name.
I have said, by the authority of the Spanish Government, it has indeed been given out to the world, for reasons that every man may conjecture, and are unnecessary to be mentioned, that this was not the act of the Government, but the rash measure of a single officer—the Intendant General of the Spanish provinces; that the Spanish Minister had issued orders for the speedy adjustment of these difficulties; had kindly offered to throw himself into the breach to prevent this Intendant General from going to extremities with the Government of the United States. Sir, gentlemen may find, when too late, that this is a mere piece of diplomatic policy, intended only to amuse them; and to say nothing of the humiliating idea of resorting to such a plaster for the wound that has been inflicted upon our national honor, if they had taken the trouble, they might have been informed that the Spanish Minister near this Government has no control at New Orleans; that the Intendant General is, like himself, an immediate officer of the Crown, and responsible only to the Crown for his conduct. If the Spanish Minister has interfered, which I am not disposed to question, to make the best of it, it could only have been by the entreaties of men in power, as a mere mediator, to beg of the Intendant General of New Orleans justice and peace on behalf of the people of the United States. Are honorable gentlemen prepared to accept peace on such terms? They might do, sir, for a tribe of starving Indians; but is this the rank that we are to hold among the nations of the world? And it seems that even these supplicating advances are likely to avail us nothing. By accounts very lately received from New Orleans, by a private letter which I have seen since these resolutions were submitted to the Senate, the Intendant General has expressed much displeasure at the interference of the Spanish Minister, stating that it was not within his duty or his province, and that he, the Intendant, acted not under Spanish but French orders.
As to the closing of the port of New Orleans against our citizens, the man who can now doubt, after viewing all the accompanying circumstances, that it was the deliberate act of the Spanish or French Government, must have locked up his mind against truth and conviction, and be determined to discredit even the evidence of his own senses. But, sir, it is not only the depriving us of our right of deposit by which we have been aggrieved, it is by a system of measures pursued antecedent and subsequent to that event, equally hostile and even more insulting. I have in my hand a paper, signed by a Spanish officer, which, with the indulgence of the Chair, I will read to the Senate: