Yeas.—John Archer, John Bacon, James A. Bayard, Phanuel Bishop, John Campbell, Thomas Claiborne, Manasseh Cutler, Samuel W. Dana, John Davenport, John Dennis, Abiel Foster, Calvin Goddard, Roger Griswold, William Barry Grove, Joseph Hemphill, Archibald Henderson, William H. Hill, Benjamin Huger, Samuel Hunt, Thomas Lowndes, Ebenezer Matoon, Lewis R. Morris, Elias Perkins, Thomas Plater, Nathan Read, John Rutledge, John C. Smith, John Stanley, John Stratton, Samuel Tenney, Samuel Thatcher, Thomas Tillinghast, George B. Upham, Joseph B. Varnum, Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel Williams, and Henry Woods.
Nays.—Willis Alston, Theodorus Bailey, Richard Brent, Robert Brown, William Butler, Matthew Clay, John Clopton, John Condit, Richard Cutts, Thomas T. Davis, John Dawson, William Dickson, Peter Early, Lucas Elmendorph, Ebenezer Elmer, William Eustis, Edwin Gray, Andrew Gregg, John A. Hanna, Daniel Heister, Joseph Heister, William Helms, William Hoge, James Holland, David Holmes, George Jackson, Michael Leib, David Meriwether, Samuel L. Mitchill, Thomas Moore, Anthony New, Thomas Newton, jr., Joseph H. Nicholson, John Randolph, jr., John Smilie, Israel Smith, John Smith, (of New York,) Josiah Smith, Samuel Smith, Henry Southard, Richard Stanford, Joseph Stanton, jr., John Stewart, John Taliaferro, jr., David Thomas, Philip R. Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, John P. Van Ness, Isaac Van Horne, and Thomas Wynns.
Mr. S. Smith said he had a communication to make, which, in his opinion, required secrecy; whereupon the galleries were cleared.
After a short time they were opened; when the House resumed the consideration of Mr. Griswold's resolution which lay on the table.
Ordered, That the Committee of the whole House, on the State of the Union, to whom was referred, on the fifth instant, a motion respecting official information of the cession of Louisiana to France, be discharged from the consideration thereof; and that the said motion do lie on the table.
Mr. Bayard said he lamented much, that unavoidable occurrences had prevented his attending in his place when the resolution was under consideration upon the motion to go into a Committee of the whole House. Having no knowledge of the arguments then employed to induce the adoption of the resolution, he should abstain from many remarks which obviously presented themselves on the subject, lest he should fall into repetitions of what was familiar to the minds of the House from the observations of other gentlemen. He must, however, be allowed to state that it was a practice little known heretofore, but one which had alarmingly increased of late, to resist a call for information from any branch of the Executive Government. It cannot be on the ground of secrecy, required by the state of affairs, for we have been often told that a Government like ours ought to have no secrets. Though the present times have assumed the character of economical, yet an honorable member of great weight in the House, and whom he did not then observe in his place, had remarked at the last session, with great emphasis and effect, that no disposition to economy should ever induce him to economize information. A stronger case than the present could not exist. The House had been called on to act upon a question touching our foreign relations. On such subjects, it was among the chief duties of the Executive to acquire information. It was for this purpose that Ministers were sent abroad, and their communications were made to the Cabinet, to which we had a right to look upon all occasions for information respecting the proceedings of foreign Governments which implicated the national interest.
It is stated in the Presidential Message, that Louisiana is ceded by Spain to France. This is an important fact. The statement in the Message shows that the President has obtained information relative to the cession after the fact is disclosed, which is the extent of any indiscretion which can be committed on the subject; why conceal from us the circumstances? The naked fact did not furnish sufficient light to enable us to judge of the steps which it would be proper for us to pursue. Though the country had been ceded, yet the possession remained with the Spaniards. This created a presumption that it was not a simple, absolute cession. If the cession be conditional or qualified, or to take effect upon some future contingency, it is extremely material that the House should be informed of the existence of the circumstances.
Mr. B. repeated his regret that he was not present at the discussion of the subject which had taken place, as it was beyond his powers to imagine a ground upon which the information requested by the resolution could be denied. But after the resolution had been in effect negatived on the motion to go into a Committee of the Whole, and, as he understood, by a large majority, he should not have risen to trouble the House but for an occurrence which had taken place since the House had made their determination upon the resolution. An honorable member from Maryland (Mr. S. Smith) has just laid upon our table a resolution calling upon the House to place two millions of dollars at the discretion of the Executive. [The Speaker here remarked to Mr. Bayard, that as the doors were no longer closed, it was not in order to refer to what had been done when the doors were closed.] Mr. B. said he had no disposition to transgress the rules of the House; but it was an awkward situation, when, arguing in support of a measure, he was not at liberty to state the strongest reason in favor of it. He would not repeat what had escaped him; but alluding to what was in the knowledge of every member, he considered himself allowed to urge the probability that the House would be called upon for a grant of money. Now, sir, can gentlemen expect that either we or the nation will in any case be satisfied to make a large grant of money, while no information is given of the grounds upon which the grant is required? When money is asked for, information ought never to be denied; and, for his part, he never would consent to give a cent, while information, which ought to be communicated, was withheld.
Mr. B. concluded by observing, that he hoped he might still flatter himself with the expectation, that what had recently occurred, would induce the House to vary from the determination they had made, and adopt the resolution.
The question was taken, that the House do agree to the resolution of Mr. Griswold, and passed in the negative—yeas 35, nays 51.
[The injunction of secrecy having been removed from the following proceedings, had in secret session, they are here inserted under the proper date.]
Ordered, That the Committee of the whole House, to whom was yesterday committed a motion in the words following, to wit:
"Resolved, That a sum of two millions of dollars, in addition to the provision heretofore made, be appropriated to defray any expenses which may be incurred in relation to the intercourse between the United States and foreign nations, to be paid out of any money that may be in the Treasury, not otherwise appropriated, and to be applied under the direction of the President of the United States, who, if necessary, is hereby authorized to borrow the whole or any part thereof; an account whereof, as soon as may be, shall be laid before Congress:"
be discharged from the consideration thereof, and that the motion be referred to Mr. Nicholson, Mr. Eustis, Mr. Bayard, Mr. Dickson, Mr. Lowndes, Mr. Thompson, and Mr. Gregg; that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House.
The committee to whom was referred a resolution proposing an appropriation of two millions of dollars, in addition to the sum usually appropriated for the purposes of intercourse between the United States and foreign nations, submit the following report:
The object of this resolution is to enable the Executive to commence, with more effect, a negotiation with the French and Spanish Governments relative to the purchase from them of the island of New Orleans, and the provinces of East and West Florida. This object is deemed highly important and has received the attentive consideration of the committee. The free and unmolested navigation of the river Mississippi is a point to which the attention of the General Government has been directed, ever since the peace of 1783, by which our independence as a nation was finally acknowledged. The immense tract of country owned by the United States, which lies immediately on the Mississippi, or communicates with it by means of large navigable rivers rising within our boundaries, renders its free navigation an object, not only of inestimable advantage, but of the very first necessity. The Mississippi forms the western boundary of the United States, from its source to the 31st degree of north latitude, and empties itself into the Gulf of Mexico, about the 29th degree of north latitude. It furnishes the only outlet through which the produce of the Indiana Territory, of the States of Ohio, Kentucky, and Tennessee, and of the western parts of Pennsylvania and Virginia, and a portion of the Mississippi Territory, can be transported to a foreign market, or to the ports of the Atlantic States. From the 31st degree of north latitude, which is the southern boundary of the United States, to the mouth of the river, the territory on each side has heretofore been in possession of the Spanish Government; the province of Louisiana lying to the west, and those of East Florida, with the island of New Orleans, to the east. Although the United States have insisted on an uncontrollable right to pass up and down the river, from its source to the sea, yet this right, if admitted in its most ample latitude, will not secure to them the full advantages of navigation. The strength and rapidity of the current of the Mississippi are known to render its ascent so extremely difficult, that few vessels of burden have attempted to go as far as our boundary. This circumstance obliges the citizens of the Western country to carry their produce down the river in boats, from which it is put on board of ships capable of sustaining a sea voyage. It follows, therefore, that to enjoy the full benefits of navigation, some place should be fixed which sea vessels can approach without great inconvenience, where the American produce may be deposited until it is again shipped to be carried abroad. This great point was secured to us in the year 1795, by the Spanish Government, who agreed, in the treaty of San Lorenzo el Real, that Americans should have the right to deposit at New Orleans. This right has been used from that time till a late period; but the conduct of the Intendant at that place shows how liable the advantageous navigation of the river is to interruption, and strongly points out the impolicy of relying on a foreign nation for benefits, which our citizens have a right to expect should be secured to them by their own Government It is hoped that the port of New Orleans may again be opened before any very material injuries arise; but should this be the case, or if, as the treaty provides, a new place of deposit should be assigned, the late occurrence shows the uncertainty of its continuance. Experience proves that the caprice or the interested views of a single officer may perpetually subject us to the alternative of submitting to injury, or of resorting to war.
The late violation of our treaty with Spain necessarily leads to the inquiry, how far the Western country may be affected in other points, not connected with New Orleans? The Mississippi Territory extends from the confines of Georgia to the river Mississippi, and from the 31st to the 35th degree of north latitude. It is estimated to contain more than fifty millions of acres, and, from its numerous advantages, must, one day or other, possess an immense population. The variety, richness, and abundance of its productions, hold out to settlers the strongest inducements to resort thither, and the United States may safely calculate on drawing a considerable revenue from the sale of lands in this, as well as in other quarters of the Western country. The value of these, however, may be diminished or increased, and the sale impeded or advanced by the impression made on the public mind, by shutting the port of New Orleans, and by eventual measures which may be adopted to guard against similar injuries.
West Florida is bounded on the north by the Mississippi Territory, from which it is separated by no natural boundary; on the east by the river Appalachicola, which divides it from East Florida; on the west by the river Mississippi, and on the south by the Gulf of Mexico. The Mississippi Territory is intersected by many large and valuable rivers, which rise within its own boundaries and meander through it in a general direction, from north to south, but empty themselves into the Gulf of Mexico through the province of West Florida. In fact, with the exception of that part of the Territory which lies immediately on the Mississippi, the whole must depend on the Mobile and the Appalachicola, with their numerous branches, and on some other rivers of inferior note, for the means of sending its produce to market, and of returning to itself such foreign supplies as the necessities or convenience of its inhabitants may require. In these rivers, too, the Eastern parts of the State of Tennessee are deeply interested, as some of the great branches of the Mobile approach very near to some of those branches of the Tennessee river, which lie above the great Muscle shoals. Even if it should prove difficult to connect them, yet the land carriage will be shorter, and the route to the sea more direct than the river Tennessee furnishes. These rivers possess, likewise, an advantage which is denied to the Mississippi. As their sources are not in the mountains, and their course is through a level country, their currents are gentle, and the tide flows considerably above our boundary. This circumstance, together with the depth of water, which many of them afford, renders them accessible to sea vessels, and ships of two hundred tons burden may ascend for several hundred miles into the heart of the Mississippi Territory. These rivers, however, which run almost exclusively within our own limits, and which it would seem as if nature had intended for our own benefit, we must be indebted to others for the beneficial use of, so long as the province of West Florida shall continue in the possession of a foreign nation. If the province of West Florida were of itself an independent empire, it would be the interest of its Government to promote the freedom of trade, by laying open the mouths of the rivers to all nations; this having been the policy of those powers who possess the mouths of the Rhine, the Danube, the Po, and the Tagus, with some others. But the system of colonization which has always heretofore prevailed proves that the mother country is ever anxious to engross to itself the trade of its colonies, and affords us every reason to apprehend that Spain will not readily admit us to pass through her territory to carry on a trade either with each other or with foreign nations. This right we may insist on, and perhaps it may be conceded to us; but it is possible that it may be denied. At all events it may prove the source of endless disagreement and perpetual hostility.
In this respect East Florida may not perhaps be so important, but its acquisition is nevertheless deemed desirable. From its junction with the State of Georgia, at the river St. Mary's, it stretches nearly four hundred miles into the sea, forming a large peninsula, and has some very fine harbors. The southern point, Cape Florida, is not more than one hundred miles distant from the Havana, and the possession of it may be beneficial to us in relation to our trade with the West Indies. It would likewise make our whole territory compact, would add considerably to our sea-coast, and by giving us the Gulf of Mexico for our southern boundary, would render us less liable to attack, in what is now deemed the most vulnerable part of the Union.
From the foregoing view of facts, it must be seen that the possession of New Orleans and the Floridas will not only be required for the convenience of the United States, but will be demanded by their most imperious necessities. The Mississippi and its branches, with those of other rivers above referred to, drain an extent of country, not less, perhaps, than one half of our whole territory, containing at this time one-eighth of our population and progressing with a rapidity beyond the experience of any former time, or of any other nation. The Floridas and New Orleans command the only outlets to the sea, and our best interests require that we should get possession of them. This requisition, however, arises not from a disposition to increase our territory; for neither the Floridas nor New Orleans offer any other inducements than their mere geographical relation to the United States. But if we look forward to the free use of the Mississippi, the Mobile, the Appalachicola, and the other rivers of the West, by ourselves and our posterity, New Orleans and the Floridas must become a part of the United States, either by purchase or by conquest.
The great question, then, which presents itself is, shall we at this time lay the foundation for future peace by offering a fair and equivalent consideration; or shall we hereafter incur the hazards and the horrors of war? The Government of the United States is differently organized from any other in the world. Its object is the happiness of man: its policy and its interest, to pursue right by right means. War is the great scourge of the human race, and should never be resorted to but in cases of the most imperious necessity. A wise government will avoid it, when its views can be attained by peaceful measures. Princes fight for glory, and the blood and treasure of their subjects is the price they pay. In all nations the people bear the burden of war, and in the United States the people rule. Their Representatives are the guardians of their rights, and it is the duty of those Representatives to provide against any event which may, even at a distant day, involve the interests and the happiness of the nation. We may, indeed, have our rights restored to us by treaty, but there is a want of fortitude in applying temporary remedies to permanent evils; thereby imposing on our posterity a burden which we ourselves ought to bear. If the purchase can be made, we ought not to hesitate. If the attempt should fail, we shall have discharged an important duty.
War may be the result, but the American nation, satisfied with our conduct, will be animated by one soul, and will unite all its energies in the contest. Foreign powers will be convinced that it is not a war of aggrandizement on our part, and will feel no unreasonable jealousies towards us. We shall have proved that our object was justice; it will be seen that our propositions were fair: and it will be acknowledged that our cause is honorable. Should alliances be necessary they may be advantageously formed. We shall have merited, and shall therefore possess, general confidence. Our measures will stand justified, not only to ourselves and our country, but to the world.
In another point of view, perhaps, it would be preferable to make the purchase, as it is believed that a smaller sum would be required for this subject, than would necessarily be expended, if we should attempt to take possession by force; the expenses of a war being, indeed, almost incalculable. The committee have no information before them, to ascertain the amount for which the purchase can be made, but it is hoped, that with the assistance of two millions of dollars in hand, this will not be unreasonable. A similar course was pursued for the purpose of settling our differences with the Regency of Algiers, by an appropriation of one million of dollars, prior to the commencement of the negotiation, and we have since experienced its beneficial effects.
Under these impressions, therefore, the committee recommend the adoption of the resolution referred to them in the following words, viz:
Resolved, That a sum of two millions of dollars in addition to the provision heretofore made, be appropriated to defray the expenses which may be incurred in relation to the intercourse between the United States and foreign nations; to be paid out of any money that may be in the treasury not otherwise appropriated, and to be applied under the direction of the President of the United States; who, if necessary is hereby authorized to borrow the same, or any part thereof, an account whereof, as soon as may be, shall be laid before Congress.[76]
Another member, to wit, William Jones, from Pennsylvania, appeared, and took his seat in the House.
Mr. Randolph moved that the House resolve itself into a Committee of the Whole, on the amendments offered by the Senate to the bill making appropriations for the Military Establishment for the year 1803.
The first amendment, applying an addition of two thousand dollars for the purchase of books, maps, and instruments for the use of the War Department, was agreed to.
On the second, adding $4,500 for the payment of postage on letters to and from the inspector, paymaster, &c., a lengthy debate ensued.
It was opposed on another ground—as being the duty of the Secretary of War to frank all letters going from the offices attached to the War Department, and, therefore, an appropriation was unnecessary.
In answer, it was observed, that the Government must, and ought, in some way, to support the expense of transporting returns, orders, and letters, relating to the military service; and, if they would not make an appropriation, it was proposed to extend the privilege of franking to the paymaster and inspector, through whom most of the details for the Army passed. That it was not the duty of the Secretary to frank letters and packages going from other offices—it was making a clerk of him—obliging him to do that which neither the law nor the constitution contemplated as being attached to his office; that it would encroach upon the time which, must necessarily be devoted to more important concerns. Besides, were he able and willing to perform the drudgery of that service, it was doubtful whether he had any legal or constitutional right to frank any packages, except those going immediately and directly from his own particular office, and that he might be liable to a penalty, though he should frank letters on public business, relating to the Army and War Department generally.
The extension of the privilege of franking was opposed by the Speaker, (Mr. Macon,) and others. They considered all franking as wrong, and liable to abuse—they would rather restrict than extend this privilege.
In reply, it was said that, if confidence could not be placed in those officers, as to the privilege of franking, the imposition could not be prevented by referring their packets to the Secretary of War, or by paying their account current with the postmasters. It was evident the Government must pay those expenses; that it could make no difference as to the revenue, whether the Postmaster General's Department received and paid to the Treasury the money which was drawn from the contingent fund of the War Department, or from a special appropriation to defray the expenses of postage on military letters and packets, or whether they extended the privilege of franking to those officers from and through whom the military details must pass. In the former case, it was but taking from one pocket and putting in the other—in the latter, much trouble was saved; and, if the characters employed in those departments were worthy of a confidence which should entitle them to the places they hold, it could never be supposed that they would abuse the privilege of franking.
On motion of Mr. Griswold, seconded by Mr. Eustis, the committee rose and the amendments from the Senate were recommitted to the Committee of Ways and Means.
Mr. Randolph hoped the act would not be amended, but repealed. When it passed, he was one of those who entered his protest against it. He considered it in the nature of an ex post facto law—an allurement to fraud—tending to corrupt the morals of the community—to change the nature of contracts—to discharge men, not only for their obligations and their solemn promises, but to violate their oaths. And, because Congress had a right to enact such a law, would gentlemen say it was for the benefit of trade? Its operations had been the reverse. He had been waiting, ever since its establishment, for the merchants themselves to come forward and urge the repeal. A portion of them had petitioned for amendments, which, in fact, amounted to a request for a repeal.
Mr. S. Smith thought any arguments on the merits of the question were premature. It was a subject of too much importance to be hurried in that manner. He hoped it would be recommitted.
Mr. Nicholson.—Many gentlemen appeared to wish a repeal, because there were some injurious provisions in the law; others wished it might be amended, believing it was capable of such alterations as would remove their objections. He thought it in some respects defective, and in others beneficial. If the evils to which it was subjected could be remedied, he should be for retaining, if not, for repealing the law.
Mr. Smilie.—Considering the situation of the United States, he thought there never should have been a bankrupt law; but he doubted whether it would be expedient to repeal it at this time, but let it expire of itself. He believed much mischief had been produced by it, and if it was repealed now, he apprehended much more would ensue. Its natural life was but five years, and he thought it had better exist for that period than be repealed. He was for recommitment.
Mr. Bayard agreed with the gentleman from Maryland, (Mr. Nicholson,) and thought the committee should have inquired what amendments were expedient. He was also forcibly impressed with the remarks of the gentleman from Pennsylvania, (Mr. Smilie,) that it was better to suffer the law to expire of itself than repeal it now. He did not think that the House were prepared to go into a discussion. The argument of the gentleman from Virginia, (Mr. Randolph,) that the bankrupt law was ex post facto, would not apply; but an act to repeal would in reality be an ex post facto law. Many merchants had entered into contracts, having an eye to the bankrupt law; many had embarked in perilous enterprises, knowing, that if they had made unfortunate calculations, that by a surrender of their effects they might again engage in commercial pursuits. And though a man might be discharged from his contracts, the sense of moral obligation was not impaired—in foro conscientiæ he was still answerable. He would not deny that frauds were committed, but for this should the honest debtor be eternally fettered with his debts? Should he, from unavoidable accidents, be cast into prison, and his family reduced to misery and distress? He was sure that the gentleman would revolt at the idea. Were the bankrupt law repealed, they must substitute the insolvent laws of the different States. Did not the insolvent laws of the Southern States hold out the same allurements to fraud as the general bankrupt law? By a repeal, they would increase the evils, and destroy the benefits of the general system. We were, said Mr. B., a great commercial Republic; the connection between merchants of the different States was increasing; therefore, the merchant of Georgia and the merchant of New Hampshire should be subjected to general regulations. Now, the merchant of Pennsylvania trusting the merchant of Virginia knew that his whole estate, real and personal, was liable for the payment of his debts; whereas, by the insolvent laws of that State, (Virginia,) the former might give an extensive credit; the latter might vest it all in land, which was untangible for the payment of his demand. The bankrupt act was a commercial law, extending equal benefits throughout the Union. If it was suffered to go back to the select committee, they would be able to give a clearer view of its advantages and defects. It was a subject of incalculable importance, both as it respected the debtor and creditor, and he hoped it would meet a candid and deliberate investigation.
Mr. Randolph said that the affairs of the world had been found to suffer more from being put in the hands of those who were superior to the management of them, than from those who were inadequate to the execution of those objects intrusted to them. It had been allowed a sound rule of construction, that all general powers must be confined to particular exceptions. The constitution gave Congress the right of making a bankrupt law, but it did not give the power of impairing contracts. He would exonerate the person, but never the property. It was the case in Virginia, when a man had surrendered all his property, his person was liberated, but his property never. And though we were a commercial Republic, was it not necessary to take care of the agricultural interest? How did the bankrupt law operate upon the planter? He knew by experience that it had been in many instances ruinous; that many planters had been choused out of their property by the operations of this very law. He had known from experience that many men had been buoyed up and supported by their friends till those friends were made good, and then suffered to fail, to the great injury of the former.
Mr. Bacon was in favor of a reference to a Committee of the whole House.
Mr. S. Smith said, gentlemen seemed to consider the bankrupt law as made entirely for the benefit of the debtor. That was an erroneous opinion. It was made also for the creditor: as such he advocated it. It enabled the creditor to secure his property, if he found the debtor was disposed to be fraudulent: he could apply for a commission of bankruptcy, and make the debtor account for the property in his possession. Besides, it reduced the creditors to an equality—a debtor could not secure his friends, and leave the rest of his creditors without a dollar. An instance of that kind had lately come within his knowledge. To the agricultural interest it held out still greater advantages. The farmer who brought his produce to market could always get cash, if he would sell for cash; if he chose to sell on a credit, he received a higher price in proportion; that increase of price was his insurance for selling on credit. He was for examining the subject, and endeavoring to remedy defects, rather than repealing.
Mr. Holland moved that it be referred to a Committee of the whole House. Carried.
Mr. Van Ness moved the following resolution:
Resolved, That a monument be erected in commemoration of the patriotism, valor, and good conduct of Major General Horatio Gates, who, in the late Revolutionary war, commanded the American forces that captured General Burgoyne and the British army under his command, at Saratoga, in the State of New York.
Ordered, That the said motion be referred to the committee to whom was committed, on the tenth instant, the bill sent from the Senate, entitled "An act to carry into effect several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven."
Two other members, to wit: from Virginia Samuel J. Cabell, and from North Carolina Robert Williams, appeared, and took their seats in the House.
A memorial of sundry inhabitants of the town of Wilmington, in the State of North Carolina, was presented to the House and read, stating that a certain number of negroes or mulattoes, to whom emancipation has been granted by the Executive of the French Government in the Island of Guadaloupe, had been recently landed at the said town of Wilmington; that, in the opinion of the memorialists, much danger to the peace and safety of the people of the Southern States of the Union in particular, is justly to be apprehended from the admission of persons of that description into the United States, from the West India Islands; and praying that Congress will be pleased to take the premises into consideration, and adopt such effectual measures for prevention thereof, as they in their wisdom may deem proper.
Ordered, That the said memorial be referred to Mr. Hill, Mr. Early, Mr. Huger, Mr. Randolph, and Mr. Campbell, to report their opinion thereupon to the House.
Mr. Davis called up the report of the Committee of Elections on the case of John P. Van Ness.
The House went into Committee of the Whole on the report, as follows:
"That, from the free concessions and agreement of the said member, it appears to your committee that he has accepted and exercised the office of a major of the militia, under the authority of the United States, within the Territory of Columbia; and that a paragraph in the sixth section of the first article of the constitution, which expressly provides, that 'No person holding any office under the United States, shall be a member of either House during his continuance in office,' does, in the opinion of your committee, render the acceptance and exercise of the office aforesaid incompatible with the holding, at the same time, of a seat in the House.
"Your committee, therefore, ask leave to submit to the House the following resolution, to wit:
"Resolved, That John. P. Van Ness, one of the members of this House, having accepted and exercised the office of major of militia, under the authority of the United States, within the Territory of Columbia, has thereby forfeited his right to a seat as a member of this House."
Mr. Van Ness said he would make a remark or two that would, perhaps, remove any impressions of indelicacy on his part in retaining his seat under the circumstances in which he was placed. He considered himself as standing on that floor, not as a private individual, but as a Representative of New York; and as holding a trust which he was not authorized to abandon before a constitutional decision should be made. His constituents had placed him there as the guardian of their rights; and that trust he could not desert without a constitutional decision being made. If that decision should be adverse to his retaining his seat, in retiring from the House he should feel no regret but at leaving his constituents unrepresented during the remainder of the session, at not having discharged all the business assigned him by the Chair, and at ceasing to associate with gentlemen whom, for the most part, he respected. In a pecuniary view, the relinquishing his seat could not in the least affect him; nor should he consider it disreputable to leave a body without any imputation of dishonor or impropriety.
The reasons he should offer to the committee for retaining his seat, were few and simple. He thought the fair, liberal, and sound construction of the constitution did not affect his case; that the incapacitating provision only applied to civil offices. The constitution was only a digest of the most approved principles of the constitutions of the several States, in which the spirit of those constitutions were combined. Not one of those constitutions excluded from office those who had accepted military appointments, except in the regular service. He, therefore, felt a full conviction that it was never the intention of the framers of the Constitution of the United States to exclude militia officers from holding a seat in Congress. And however important it might be to adhere to the letter of the constitution, yet, when the spirit of it was so clear as it appeared to him, it ought to have weight in the decision of the question before the committee, which might affect objects of great importance. The right of every portion of the Union to a representation in that House was very important, and ought to be respected in all cases which may either directly or indirectly affect it. Gentlemen, therefore, ought to reflect before they deprive a part of the Union of this important right.
Had he supposed that the acceptance of an office in the militia would have interfered with his seat in that House, he would never have accepted it. He had never entertained a doubt on this point until broached in the House. Since then, he had heard various opinions. By what he had heard, his own opinion was not changed, as he believed that a true construction of the constitution would exclude his case. Should, however, a decision against his holding his seat be made, he should retire without any other regret than that which he had expressed. He had not risen to argue the case as an advocate, but merely to assign the grounds on which he had acted.
The question was then taken on the report of the Committee of Elections, which was agreed to without a division.
The committee rose, and the House immediately took up their report.
Mr. Randolph observed that, on a precedent so important as was about to be established by the vote of the House, it was unnecessary to say a word. He wished, however, that the disposition of the House to exclude, by a unanimous vote, even the shadow of Executive influence, should be recorded on their journals; for which purpose he called the yeas and nays; which were taken, and were unanimously in favor of the resolution.
A new member, to wit, Richard Winn, returned to serve in this House as a member from South Carolina, in the room of Thomas Sumter, appointed a Senator of the United States, appeared, produced his credentials, and took his seat in the House.
On a motion made and seconded that the House do come to the following resolution:
Resolved, That, inasmuch as the late Territory of the United States north-west of the river Ohio have, by virtue of an act of Congress passed on the first day of May, one thousand eight hundred and two, formed a Constitution and State Government, and have thereby, and by virtue of an act of Congress aforesaid, become a separate and independent State, by the name of "Ohio," that Paul Fearing, a member of this House, who was elected by the late Territorial Government of the Territory north-west of the river Ohio, is no longer entitled to a seat in this House:
Ordered, That the said motion be referred to the Committee of Elections: that they do examine the matter thereof, and report the same, with their opinion thereupon, to the House.
Mr. Mitchill rose to address the House on a subject of a commercial nature. He alluded to the depredations committed upon the commerce of the United States, by French armed vessels, during the late war in Europe. The gentlemen of the House would, he hoped, turn their attention, for a few minutes, to the numerous memorials received from our merchants during the last session, praying compensation for those losses. These papers were numerous and respectful, and came from a most valuable portion of our fellow-citizens. Their grievances had not hitherto been redressed, nor even inquired into with the minuteness which it appeared to him to deserve. It was true a committee, numerous and intelligent, had been appointed during the last session, to examine the matter of these applications. A report had been made to the House. This report was full of information concerning the political and commercial connection between the United States and France. It comprised a concise and correct history of what had been done on both sides, since the mutual misunderstandings arose. It was a valuable document, as far as it went; but it did not conclude with any recommendation of a mode of relief, or even of investigation. It stopped short with the historical narrative, without proposing even a mode of further inquiry. During the present session, nothing further had been done or attempted. Early after the Congress assembled, he had himself given notice of an intention to revive the subject. It was confessedly of magnitude enough to merit investigation. This notice, he remembered, was given previous to the receipt of the message from the Executive. But the multitude of public business that had grown out of that communication, added to other subjects, had so completely occupied his mind, that he had hitherto suffered it to pass on without bestowing on it the consideration which he owned that it deserved. He was now ready to make amends for this inadvertent or necessary, certainly not intentional, delay. He had heard, with satisfaction, the call of the gentleman from South Carolina (Mr. Lowndes) for his (Mr. Mitchill's) promised motion. He acknowledged the hint of that gentleman to be seasonable, and felt himself obliged to him for acting the part of a good prompter. To show that gentleman that he had profited by the suggestion made on Friday last, he had now risen with an intention to lay a resolve upon the table. The object of the resolve was to cause an inquiry to be entered upon, by a special Committee of the House, as to what amount of property, or its value in current money, had been taken from the Americans during the late war by the cruisers of France. The committee could devise some mode of ascertaining the magnitude of the sufferings complained of. This he considered as the first step that ought to be taken, towards the procuring of redress for the petitioners. And, until this was taken, he believed nothing was likely to be done. Another object of the resolve he was about to offer, was to instruct the same committee to inquire into the different classes of captures and claims. He did not suppose that all the petitioners were entitled to compensation. Some of them, he knew, were not; but it was equally clear that some of them were. This complicated mass of applications could be examined by a committee, who could draw some distinctions that would be useful. They could tell, for instance, that one sort were lawful captures for and on account of contraband, others for want of a rôle d'équipage, others were taken wrongfully, without any cause whatever, and the like. Some judgment might be formed in this way of the probable amount that might be contemplated as bona fide claims. He suspected this amount would be but an inconsiderable part of the gross amount of captures. But whether it was large or small, he hoped an examination would be attempted; and, for that purpose, he moved the following resolution:
Resolved, That a committee be appointed to inquire by what means the value or amount of property taken from citizens of the United States by the French, during the late war in Europe, can be best ascertained, and the several sorts of captures distinguished and classed, and report their opinion thereon to this House, to the end that indemnification may be made.
Mr. Mitchill then said, that he did not press an instant decision upon it; but wished it to lie a day or two on the table for consideration.
The several petitions of William Tilghman, Oliver Wolcott, Richard Bassett, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, Philip B. Key, William Griffith, Jeremiah Smith, and George K. Taylor, were presented to the House and read, respectively representing, that, by an act of Congress, passed on the thirteenth day of February, one thousand eight hundred and one, entitled "An act 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: That, in virtue of appointments made under the Constitution of the United States, the petitioners 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: That, 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 the petitioners the execution of any judicial function, nor has any provision been made for the payment of their stipulated compensations: That, 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," that petitioners 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: That, "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 petitioners, by such provisions as shall be consistent with the constitution, and the convenient administration of justice:" That "the right of the petitioners 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 cheerfully be 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 petitioners, 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: That, 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:" That, "this being the deliberate and solemn opinion of the petitioners, the duty of their stations requires that they should express 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."
Mr. Griswold moved a reference of the foregoing memorial to a select committee.
Mr. Gregg observed that, according to the usual mode of transacting business, it ought to go to the Committee of Claims. He, therefore, made that motion.
Mr. Randolph did not think a select committee, or the Committee of Claims, a proper committee to whom to refer this memorial. What is its nature? Does it embrace any point of fact on which a committee is to make inquiry? No. It is a broad constitutional question. He was, therefore, in favor of having it examined, where it must eventually be settled, in the House. If, therefore, the memorial had any reference, it ought to be referred to a Committee of the whole House; to which effect he made a motion.
Mr. Bacon hoped this last motion would not obtain. He did not know what there was in this petition to distinguish it from any other petition from any citizens of the United States. It was suggested that it involved a great constitutional question. He did not know that this was the case. Any thing might be made a constitutional question. But he thought this question had been already determined by the whole Legislature on the most mature deliberation. He saw nothing to distinguish this petition from other petitions. He would not say that it would be doing it too much honor, but it would be making too wide a difference between similar applications to adopt this course. He was, therefore, for pursuing the common course.
Mr. Griswold had no objection to a reference of the memorial to a Committee of the Whole. Perhaps that would be the better mode. It was true, as the gentleman from Virginia had stated, that a very important constitutional question may arise on this memorial. Nor did he know, as represented by the gentleman from Massachusetts, (Mr. Bacon,) that all the constitutional questions involved in the subject had been settled by the decision of the last session. He had understood the gentleman himself, in his speech, during the last session, to have said that the question of compensation was a very different question from that then under discussion. He was not absolutely certain that that gentleman expressed such an opinion, but he was certain that some gentlemen of the majority did. As the memorial was couched in terms of great respect, he trusted there would be no objection on the part of the House to give it a proper attention.
Mr. Randolph would concisely answer the gentleman from Massachusetts. Does this question involve an inquiry either into matter of expediency or of fact? With respect to fact, they were all agreed. The judges make the question turn on a construction given to the constitution; it was, therefore, indubitably a constitutional question, on which a committee could not decide. The House, then, must decide. It appeared to him to be the plainest case on earth. No doubt constitutional questions may arise on many points. He hoped, therefore, the House would itself decide it. For his part, he considered the decision as already made. He hoped the memorial would be taken up that day.
Mr. Smilie was against referring the memorial to a Committee of the Whole. If the subject had not been already maturely considered and discussed at the greatest length, he should be in favor of such a reference. But it had been most fully discussed. If they meant to sit there to the neglect of the important business, they ought to go into Committee of the Whole; but if they meant to do the public business, they ought not. Gentlemen should recollect the time spent in this discussion the last session.
Mr. Dana thought the gentleman from Pennsylvania did not calculate correctly. The same object, as to debate, would be attained in the House as in a Committee of the Whole. For he would recollect, that notwithstanding the length of the debate of the last session, and though the House were in Committee, no gentleman had spoken more than once; and, according to the rules of the House, every member had a right to speak twice.
Mr. Dana said that he agreed with the gentleman from Virginia in the ideas he had expressed.
The question was then taken on Mr. Randolph's motion to refer the memorial to a Committee of the whole House, and carried—ayes 53.
The Speaker inquired for what day it should be made the order.
Mr. Randolph said, to-day.
Mr. Griswold, to-morrow.
The question was taken on Mr. Griswold's motion, and lost—ayes 38, noes 51.
Mr. Huger moved that it should be the order for Monday. It must be evident, that the members had not yet sufficiently attended to the subject to be prepared for a decision. It was a very different question from that decided the last session. It certainly required some little time to enable gentlemen to revolve it in their minds. It was not usual to force decisions in that way. If it was the object of gentlemen merely to vote it out, a majority must do as they please; but if they were disposed to pay it ordinary respect, they certainly could not urge so precipitate a discussion.
Mr. Randolph asked if it were in order, after the question had been taken, to name another day. He said he would not have urged an immediate consideration of the memorial, but for the conviction that the subject, in all its bearings, had undergone the maturest investigation, not only of every member on that floor, but of every thinking man in the United States.
The Speaker decided that the moving another day was not in order.
The question on going into a Committee of the Whole this day, was then carried without a division. Whereupon,
Mr. Randolph moved that the House should go into committee immediately.
The Speaker said the unfinished business of yesterday would be the first acted upon unless postponed.
Mr. Randolph moved the postponement of the unfinished business till to-morrow. Carried.
The House then resolved itself into a Committee of the Whole on the memorial—Mr. Dawson in the chair.
The memorial of William Tilghman was read; which was accompanied by ten other verbatim memorials, signed by Oliver Wolcott, Jeremiah Smith, Richard Bassett, Philip B. Key, George K. Taylor, Charles Magill, Samuel Hitchcock, Benjamin Bourne, Egbert Benson, and William Griffiths.
Mr. Griswold said, he did not think it proper to enter into an extensive discussion of the memorial. The haste with which the consideration of it was urged, appeared to him indicative of a disposition to reject it altogether. Under such circumstances discussion would be useless. At the same time, he would remark, that it involved a question very different from that decided at the last session. It had, then, been decided that the Legislature had the constitutional right to deprive the judges of all Judicial power; but the question never was settled, that, notwithstanding the judges should be deprived of all their Judicial powers, they were not entitled to the compensation guaranteed by the constitution. This involved a distinct point, which ought not to be hastily acted upon. The judges had never been heard before Congress on this question. They had a right by the constitution to be heard, and to be heard by counsel, he presumed, if they desired it. He had thought the House would have given time for them to be heard. But they had determined to proceed immediately. He should, therefore, be content with moving two resolutions.
Mr. Griswold here read his resolutions as follows: