And then the House adjourned until to-morrow morning eleven o'clock.

Saturday, January 26.

Another member, to wit, from Massachusetts, Edward St. Loe Livermore, appeared, and took his seat.

Tuesday, January 29.

Removal of Federal Judges on address of Congress.

AMENDMENT TO THE CONSTITUTION.

Mr. Wright.—Believing, as I do, that the Constitution of the United States is not perfect, and as provision is made in the body of the instrument for amending its imperfections in the manner therein prescribed, I feel it an imperious duty to propose an amendment to it. Here let me remark, that its adoption was opposed by the patriots of America, at the time of its ratification, because of omissions important to liberty. It had not guarded against an establishment of religion; it had not secured the right of the people to keep and bear arms; it had not guarded against soldiers being quartered in our houses in time of peace, without our consent, it had not guarded against warrants being issued without oath; it had not guarded against a man's being put to answer without previous indictment; it had not secured the criminal in the trial by jury; it had not secured the trial by jury in cases of common law, and these omissions as due guards to the liberty of the citizens stand recorded in these amendments almost coeval with the instrument. The terms Federal and anti-Federal had their origin in the zeal of the respective parties at that time; the one insisting on its adoption with all these imperfections on its head, while the other insisted on these amendments; and it has always appeared to me, that on the adoption of the amendments that those who were called anti-Federals were really the Federals, the constitution being perfected by the adoption of these amendments. The foregoing amendments test its original imperfection, and I trust will lead this House to a temperate examination of the amendment I now propose to submit.

The amendment, sir, is to place the judiciary of the United States on the same foundation that the British judiciary are placed by their laws; by enabling the President, on the joint address of the Senate and House of Representatives of the United States, to remove a judge.

In England the judges held their commissions during the pleasure of the Crown, till the time of Charles the First, when the Parliament imposed upon the King the necessity of granting them during good behavior; till then the Crown, as the fountain of justice, held the uncontrolled direction of the commissions of the judges. At the same time, sir, the High Commission Court and Star Chamber were abolished. In the thirteenth year of William the Third, the judges, by statute, were to hold their commissions during good behavior, and by the same statute they may be removed by the joint address of both Houses of Parliament; and here let me remark, that under that tenure and responsibility, the British judiciary have attained a celebrity in history for their judicial integrity and correctness highly honorable to them, and which this amendment, I fondly hope, in time, may correctly attach to the judiciary of the United States. There are a variety of cases where the exercise of this power may be necessary for the safety of the people, which ought to be the supreme law. This power, I trust, will never be abused by the American Congress. I do not recollect a case under the British Government, where for fifty years it has been exercised, and I trust we shall not ascribe to ourselves an indisposition to the correct discharge of those functions which have been correctly exercised or rather not exercised at all for fifty years by the British Government. If in England, where the Crown is hereditary, the Lords hereditary and for life, and the Commons for seven years, this tenure and responsibility has been found necessary, I trust in this Government, where the President is for four years, the Senate for six, and the House of Representatives for two years, this judicial tenure and responsibility will be thought expedient, and that this amendment will be adopted by Congress, particularly as it is but a preliminary decision—as it must be submitted to the States, and cannot go into operation but by the consent of three-fourths of the United States. I have therefore thought fit to submit this resolution, and hope the reasons assigned will induce you to believe that I think it of such importance to the nation as to entitle it to your attention.

Mr. W. then submitted the following resolutions:

The House refused to consider the motion—45 to 38.

Wednesday, January 30.

Jared Shattuck's Claim.

The House resolved itself into a committee of the Whole on the report of the Committee of Claims on the petition of Jared Shattuck—59 to 29.

The report is favorable to the claimant—a bill for the relief of this person having in two former sessions passed this House, but not been acceded to in the Senate.

Mr. Montgomery, in a speech of some length, opposed the claim, and moved that the committee rise, with a view to printing the papers relating to the claim, which he conceived was not fully understood.

This motion was debated, and lost—56 to 43.

The report was also debated, and agreed to—57 to 39.

The committee then rose and reported their agreement to the report.

Thursday, January 31.

Another member, to wit, from Massachusetts, Orchard Cook, appeared, and took his seat.

Mississippi Territory.

The House resolved itself into a Committee of the Whole, on the report of the select committee in favor of admitting the Mississippi Territory into the Union on an equal footing with the original States.

A desultory debate of two or three hours took place on the resolution.

Messrs. Poindexter, Johnson, Gholson, McKim, Sheffey, Holland, and Wright, spoke in favor of the resolution, and Messrs. Bacon, Pitkin, Quincy, Bigelow, and Blaisdell, against it. The arguments in favor of its passage were, among others, that the territory could, when possessing a population of 60,000, claim admission as a right; that it now contained probably 45,000, and would, more than probably, before a Representative could be elected under the new constitution, contain full 60,000 souls; that, after admitting Orleans to the rank of a State, with a minor population, at the present session, it would be the height of injustice to refuse the same privilege to Mississippi, which had been so much longer a part of the united territory, and against the admission of which into the Union none of the constitutional objections had weight which had been urged against the admission of Orleans. The opponents of the resolution argued that some respect was due to the feelings, however grounded, of the eastern States, in relation to the creation of new States on the western waters; that the admission of one State during a session was sufficient; if two were admitted into the Union, in the course of three months, the people of the eastern States would be justly alarmed at the diminution of their relative weight in the scale of the Union; that, since it was acknowledged the new State could not be represented before the thirteenth Congress, there could be no occasion for pressing this subject so urgently at this time. Why not, it was asked, wait for the actual census of the territory? The very solicitude which was manifested to get this subject through Congress, it was said, showed there was something wrong, and was a strong argument against the adoption of the resolution.

The resolution was agreed to in Committee of the Whole—ayes 62.

The committee rose, and reported their agreement to the resolution.

The question was then taken to concur with the Committee of the Whole in their agreement to the said resolution, and resolved in the affirmative—yeas 68, nays 47.

Friday, February 1.

Commercial Intercourse.

The House went into Committee of the Whole on the following bill reported by the Committee of Foreign Relations:

Mr. Emott moved to amend the same by striking out the words in italic, and to insert in their place, "or merchandise." The bill, as amended, would read as follows:

Mr. Emott.—Mr. Chairman: As the bill which is now on your table is calculated to relieve our merchants in part from the restrictive system which has again been attempted to be put in operation, I so far approve of it; but as it does not appear to me to go far enough, I rise for the purpose of moving an amendment, which, if adopted, will once more give us a clear deck; and while I am up, the committee will permit me, as concisely as the nature of the subject will admit, to assign the reasons which induce me to propose the amendment.

By the law of the first of May last, the President was authorized, in case either of the great belligerents, before the third of March, revoked her anti-neutral edicts, to proclaim the same, and if the other did not in three months also revoke, a non-intercourse with her was to follow. On the second day of November, the President had proclaimed, as a fact, that France had made the necessary revocation; and it follows, if he was correct as to the fact, that on the second day of this month, the non-intercourse went into operation against Great Britain.

As many formerly, and more latterly, have doubted as to the fact thus proclaimed, it becomes, sir, a duty which we owe to ourselves and to the people, to inquire into its existence; for if it be true that no such repeal, as was contemplated by the law, has taken place; if, indeed, the President has been deceived, or was mistaken, we cannot too soon make it known, and relieve the country from the vexation and embarrassment which must result from the present state of things.

If, sir, additional motives were necessary, we may find them in the bills which have this morning been introduced into the House by the chairman of the Committee of Ways and Means, at the instance of the Secretary of the Treasury, one of which goes to lay large additional duties, and the other to authorize a loan. The reasons assigned by the Secretary for this new and heavy tax on our citizens are, that as the greater part of our duties on imports are collected on goods coming from Great Britain and her colonies, and as those duties will cease with the revival of the non-importation, it becomes necessary, in order to prevent a defalcation in the revenue, to tax the production of other countries much beyond the present rate. On this presumed defalcation, too, in some degree depends the proposition for a loan, or, if a loan be necessary, the amount of it. In this point of view, it becomes highly important to ascertain whether the non-intercourse has gone into operation; for if it has not, I trust we shall not proceed to give form and shape to the recommendation of the Secretary, that we shall not burden the country with new taxes, or subject it to large loans.

In the commencement of this inquiry, Mr. Chairman, we naturally ask ourselves, what edicts are to be revoked, and how are they to be revoked? It is not material to extend this inquiry to Great Britain, as we know of no revocation on her part, and, under all circumstances, we have not, I fear, much reason to believe that there will be such revocation. But it may be well to notice here something which has the appearance of inconsistency, on the part of our Executive, towards that Government.

The non-intercourse law of March, 1809, contains a provision, that, "in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President shall declare the same by proclamation, and the non-intercourse was then to cease as to the nation revoking. It was under this law, and in consequence of the power so given to the President, that the celebrated, though ill-fated arrangement, was made between the Executive and the British Minister, Mr. Erskine. Now, sir, by referring to this arrangement, you will find, that on April 18, Mr. Erskine proposed to Secretary Smith the revocation of the orders in council of January and November, 1807, as a compliance on the part of Great Britain with the terms of the act of March; and our Secretary, on the same day, declaring that the withdrawing of such orders would be deemed satisfactory by the President, the arrangement was completed on the 19th, and a proclamation accordingly issued on the ground, and assuming the fact, that the British edicts had ceased to violate our neutral commerce, and again opening the intercourse between the two countries after the 10th of June.

This arrangement, and the short and hasty correspondence connected with it, you will recollect, sir, were presented to Congress with the Message, at the opening of the summer session of 1809, and we then passed a law, the object of which was to ratify and to carry into effect the arrangement. Here, then, we have an explicit opinion from both the Executive and the Legislature, that the only British orders which came within the spirit and intent of the law of March, were those of January and November 1807, and that, when those orders were revoked, the edicts of Great Britain ceased to violate the commerce of the United States.

I pray you now, Mr. Chairman, to turn with me to the law of May last; you will there find the precise phraseology of the act of March: "In case either Great Britain or France shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President is to make known the fact by proclamation. The authority given to the President is in both cases the same, and it was to have been presumed that it would have been exercised on the same terms. But, sir, it will be found, on referring to the papers, that, under the act of May, the Executive made a further requisition. The revocation of the orders in council of January and November was not to satisfy us, but the blockade of the year preceding was to be also annulled.

In the letter from Secretary Smith to our Minister at London, of the 5th of July, 1810, and which enclosed a copy of the law of May, it is said, "that in explaining the extent of the repeal which is required on the British side, Mr. Pinkney will let it be distinctly understood, that it must necessarily include an annulment of the blockade of 1806;" and our minister accordingly, in his letter to Lord Wellesley, of the 21st of September, tells him it is his duty to state "that an annulment of the blockade of May, 1806, is considered by the President to be as indispensable, in the view of the act, as the revocation of the British orders in council." Nay, so far has the President gone in this particular as to give the French Government a pledge that this will be required on the part of Great Britain. In the letter from Secretary Smith to General Armstrong, of the 5th of July, 1810, the latter is authorized, if it should be found necessary, to "let it be understood that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain."

It is not my intention at this time, to enter into a discussion on the subject of blockades, nor am I to be understood as giving countenance to the system of paper blockades, whether that system proceeds from or is attempted to be enforced by England or by France; but, sir, I have gone into this examination to show that the President has acted differently under two laws which ought to have the same practical construction, because the terms used in them were alike; that under the law of May, 1810, he added a condition to a settlement with Great Britain, which he did not require under the law of March, 1809; and why this difference?

Will it be said, that when the arrangement was made with Mr. Erskine the President had no knowledge of the blockading orders of May, 1806? Not so, sir. By recurring to a report made by Mr. Madison, as Secretary of State, in December, 1808, of belligerent decrees and orders affecting neutral commerce, you will find this very blockade; and certainly what he knew as Secretary in December, he must have known as President in the April following. Shall I be told the President had discovered that the blockade had been "avowed to be comprehended in, and identified with, the orders in council?" I fear this will not be a satisfactory answer. For, in this case, if the orders in council are rescinded, the connection between them and the blockade will then stand as it was supposed by the Executive to stand when the arrangement was entered into.

Persons, Mr. Chairman, more prone to jealousy than myself, and who are disposed to find fault with the late Executive projects, may perhaps point to that passage in the letter from Secretary Smith to Mr. Pinkney, of the 22d of May, 1810, in which it is said, that the President has read, with surprise and regret, the reply of Lord Wellesley to the note requiring explanations with respect to the blockade of France, which "evinces an inflexible determination to persevere in the system of blockade," as affording a reason for this added condition: they may say that it was thrust in when our Administration were satisfied that it would not be acceded to by the British, and for the purpose of preventing an accommodation with, and keeping up the irritation against, that nation. But while, for myself, I disclaim this inference, I must confess that I am at a loss to assign a sufficient motive for the difference in the two cases.

As to France, sir, what were the edicts to be revoked, and how revoked? I shall have occasion, before I sit down, to notice the Berlin and Milan decrees. But were there not other decrees?

We have before us the Rambouillet decree, with a date of the 23d of March, 1810, which declares that "all vessels navigating under the flag of the United States, or possessed in whole or in part by a citizen or subject of that power, which, counting from the 20th of May, 1809, have entered, or shall enter into the ports of our Empire, of our colonies, or of the countries occupied by our arms, shall be seized, and the product of the sales shall be deposited in the surplus fund." Thus embracing almost the whole of continental Europe; for, with the exception of the Russian ports on the Baltic, and two or three places in the European peninsula, every port frequented by the Americans belonged either to the Empire of France, to the colonies of that Empire, or to countries occupied by the forces of the Empire. The seizures under this decree were consequently great and distressing to our merchants.

This decree purports to be an act of reprisal on this country, and for what cause? Not for any act of hostility by us; not for any seizures or confiscations of French vessels or French property under the authority, or within the limits of this Government. No, sir, a pretence of this kind appeared too absurd to be inserted even in a French decree. It is true that General Armstrong, in his letter to Secretary Smith, of the 10th of September, 1810, communicates a verbal explanation which accompanied the last letter of the French Minister: "If you confiscate French property under the law of non-intercourse, they will confiscate your property under their decree of Rambouillet." Ay, sir, and they have given a practical explanation that they would confiscate our property under the decree, although we did not confiscate their property under the non-intercourse law. Look at the decree itself, and you will find the motive, or rather the pretext for this act of reprisal. It is grounded on the passing of the act of the 1st of March, 1809, and it is grounded on that alone.

Thus, because we deemed it advisable to pass a law which we supposed was a mere municipal regulation, inasmuch as it related to our own citizens, or our own territories; a law, which, according to its letter, applied equally to both belligerents, and which was not to commence its operation until the 20th of May, contained in itself a notice sufficient to prevent any injury to French subjects; for this cause, and for this alone, the Emperor adopts, as an act of reprisal, a decree which subjects to seizure and confiscation, not only American property which should reach the continent after notice of the decree, or even after its date, but property which arrived there at any time for the preceding twelve months. I will not stop to inquire what would and what ought to have been the feelings of the Administration and of the country, if such an outrage had been committed by England for such a cause. But, sir, if the French Government is allowed to have in the act of March an excuse for reprisal, we had better discontinue making laws altogether; for it is difficult to find in our statute book a law less hostile to France, or more within the right of an independent Government to enact.

To see the true character of this decree, we must approach it a little nearer; and with the letters of the Duke of Cadore in my hand—those letters, sir, which have occasioned our present embarrassments—I am strangely deceived if this proceeding of the French Government does not appear to partake of the nature of an offence which, as respects individuals, is called swindling. It is a taking of property under false pretences.

Allow me now, Mr. Chairman, to present you with another view of this decree. The Duke of Cadore, in his letter of the 5th of August, 1810, says: "Now Congress retrace their steps; they revoke the act of the 1st of March; the ports of America are opened to French commerce, and France is no longer interdicted to the Americans." And in his letter of the 7th of September, he uses these expressions: "His Majesty has always wished to favor the commerce of the United States. It was not without reluctance that he used reprisals towards the Americans, while he saw that Congress had ordered the confiscation of all French vessels which might arrive in the United States."

"As soon as His Majesty was informed of this hostile act, he felt that the honor of France, involved in this point, could not be cleansed but by a declaration of war." Now "the American vessels which shall arrive in France, will not be subject to confiscation, because the act of Congress, which had served as a motive to our reprisals, is repealed." From this exposition of the views of the French Government, handed to us by the Minister of Exterior Relations, we perceive that he places the Rambouillet decree entirely to the account of the non-intercourse law of March; and from the course of reasoning used by him, it seems to be admitted that the decree, and the seizures under it, could not be justified, but while the obnoxious law was in force.

But we here again meet with another of the mistakes of this most just Government, which is so jealous of its honor and so friendly to our commerce. The fact happens to be that the law never was repealed. By its own limitation it expired with the then session of Congress, and, of course, went out of existence on the 28th of June, 1809. Thus this poor law, which is now brought up in judgment against us, had quietly descended to the tomb of the Capulets almost a year before the Emperor and King thought it consistent with his interest, or for the honor of his empire, to commence his measures of retaliation. The limitation clause could not have escaped the attention of His Majesty when he read the law; and, I trust, we yet have pride enough to believe that he knows there is an American Congress, and notices the periods of our meeting and departure, if he is careless about our proceedings. When, therefore, Napoleon issued the plundering decree of Rambouillet, he knew that the law on which he placed his justification had long since expired. But he knew a further fact, that the law never did affect French vessels. The British navy kept them at home, and we excluded English vessels only. Such was the practical and the only practical operation of our law.

I am aware that the apologists of the Emperor will point to the act of the 1st of June, 1809, as reviving or continuing certain sections of the law of March. Let me not be misunderstood, Mr. Chairman. I do not mean to insinuate that the Emperor has apologists in this House, in this ark of independence and liberty of a great people; but, in whatever place this suggestion shall be offered, it may be answered that the French Government have not noticed the last law in their decree, or in any of their official papers. And it may be further remarked that the law of June, like that of March, was limited to the end of the next session of Congress, and, of course, ceased its operation on the 1st of May, 1810. As the decree issued on the 14th of May, and the seizures under it were after that time, it would seem, to a man of common understanding, who believes the transactions between nations are, or ought to be, regulated by the rules of honest, plain dealing, that the Emperor, when he had knowledge of the fact, would have loosened his hold on our property. And yet we find that, when we approach him on this subject, he laughs us to scorn.

The object which I had in view, in this examination of the Rambouillet decree, was, to mark its true character, to show that this decree emphatically outraged our neutral rights, and that, if it was submitted to by this country, our code of national rights will be found hereafter in the same books with those of the kingdoms which belong to the Confederation of the Rhine. Our merchants are induced to adventure to France by a prospect of large profits, and by promises of great security if their vessels have not been "denationalized." They take there many a valuable cargo, until the amount of property becomes an object of imperial attention, and then it is seized upon by an irresistible and unrelenting hand, without notice, and upon pretexts void of any foundation. Can a decree, or order, or edict, be pointed out in the long history of our wrongs and our sufferings, which is more strongly marked with injustice, or which more strongly "violates our neutral commerce?"

I will not detain the committee by entering into a particular examination of the French decrees, which, in the commencement of the last year, authorized the seizure of such a number of American vessels at St. Sebastians, at Naples, and in the North of Europe. It would lead me too far into the views and conduct of the French Government towards this country, for the purposes of this discussion. But, sir, in this volume of documents, I see, with emotions which I am sure are in unison with those of the American people, the famous note, signed "Champagny, Duke de Cadore," of the 4th of February last, written to justify those seizures, and, as he says, "that the President may the better know the friendly intentions of France towards the United States, and her favorable dispositions to American commerce;" in which we are told that we are "without just political views, without honor, and without energy." And are we so sunk in the estimation of the mighty conqueror, that he thinks it necessary and proper to use this as his official language towards us? Surely, sir, he mistakes the character and the spirit of this people if he believes they are to be broken down, or brought into his views, by insults or threats. As our Government had, a few months before, discharged and disgraced a British Minister for a supposed insult by an insinuation, it was to have been expected that, on this occasion, equal spirit would be shown. But to such as formed corresponding expectations, what will be their feelings when they find that the only Executive notice of the note is found in the letter of Mr. Smith to General Armstrong, of the 5th of June last, in which the Secretary says, that, "as the John Adams is daily expected, and as your farther communications by her will better enable me to adapt to the actual state of our affairs with the French Government, the observations proper to be made in relation to the seizure of our property, and to the letter of the Duke of Cadore, of the 14th of February; it is, by the President, deemed expedient not to make, at this time, any such animadversions."

Let us now see, Mr. Chairman, whether these decrees have been "so revoked or modified as that they ceased to violate the neutral commerce of the United States."

These decrees have two distinct operations, the seizure of our property, and the subsequent sale of that property; and, without attempting to prove a proposition which appears self-evident, I shall take it for granted that, if it was an infringement of our rights to seize the property, it is equally an infringement of our rights to proceed to the confiscation and sale of such property. Nay, sir, if we allow to the French Government the plea of retaliation, the infringement of our rights will commence with the confiscation and sale of our vessels after the cause of retaliation has been removed by us, and known so to be by the Emperor. A revocation or modification of these decrees, so that they should cease to violate our fair commerce, therefore, would look as well to an indemnity for the past as a security for the future; it necessarily includes a restoration of the property already taken, as well as an engagement against future captures. This appears to have been, at one time, the opinion of our Administration; for you will find, by recurring to the letter from Secretary Smith to General Armstrong, of the 5th of June, 1810, which enclosed a copy of the law of May, the determination of our Executive is thus made known: "If, however, the arrangement contemplated by the law should be acceptable to the French Government, you will understand it to be the purpose of the President not to proceed in giving it effect, in case the late seizure of the property of the citizens of the United States has been followed by an absolute confiscation, and restoration be finally refused." And in the letter from Mr. Smith to General Armstrong, of the 5th of July, this determination is expressed with added strength: "As has been heretofore stated to you, a satisfactory provision for restoring the property lately surprised and seized by the order, or at the instance of the French Government, must be combined with a repeal of the French edicts, with a view to a non-intercourse with Great Britain; such a provision being an indispensable evidence of the just purpose of France towards the United States."

Without asking for the evidence which the President had as to the repeal or modification of these decrees, I now put it to the committee whether every member of it is not perfectly convinced that if any modification, or suspension, or repeal, has taken place, it goes no farther than to restrain future seizures, leaving the property already seized to take the course of confiscation and sale? Do we not know, that, in the months of October and November, our vessels and merchandise have been brought under the hammer in pursuance of those decrees; and have we not lately seen, in our public journals, a list of some eighteen or twenty ships advertised by the French Government for sale at Bayonne, on the 5th of December? Nay, sir, the Executive was informed, before he issued his proclamation, by the letter from the Duke of Cadore to General Armstrong, of the 12th of September, 1810, that, "as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair." Words cannot be found which would more satisfactorily "evince an inflexible determination" to retain the property. As the principles of reprisal are to be the law, it follows that a restoration of the property depends on the discretion of the Emperor, and is not to be claimed by us as a matter of right, but of favor. And what have we to propose, according to the principles of reprisal, to obtain the restoration? Is it, that we have suffered the non-intercourse law to expire? Why, sir, this had taken place long before the letter of the Duke of Cadore. Is it a restoration of French property seized under the law of non-intercourse? This cannot take place; because, in truth, there was no such seizure.

We will now examine whether there has been such a revocation of the Berlin and Milan decrees as warranted the proclamation. And here let me remark that, when the President acted under this law, he was not exercising the treaty-making power. He was the mere agent of the Legislature, and as such agent, he was confined and limited by his letter of attorney, the law. He had not, therefore, as has been asserted, a discretion, nor had he any thing to do with considerations of comity or courtesy. He was to ascertain when there was an actual and practical revocation, and then make known the fact; the consequences were left with the legislature. Indeed, sir, this power to give publicity to a fact might have been committed to one of the Secretaries, or to a clerk in the offices, and if it had, we should have smiled at the suggestion that its exercise depended on considerations of courtesy.

Mr. Chairman, when the proclamation first appeared, my impression was, and such, too, I understood to be the general impression, that the President had some document unknown to the American people. The letter of the Duke of Cadore, of the 5th of August, was already before the public, but it was not credited that on this letter the proclamation had been issued. Since we have received the Message the subject is at rest. It is now known and acknowledged that the President had not, and to this moment has not, any other evidence of a revocation. Now, sir, in this letter, I see neither the form nor the substance of a revocation.

What is the understanding of the French courts and officers, on this subject. I have already presented you with that part of the letter of the Duke of Cadore, of the 5th of August, in which he says, that since Congress have retraced their steps, by revoking the act of the first of March, "France is no longer interdicted to the Americans." Now, if this letter is in the form of a decree, it revokes or modifies the Rambouillet decree equally with those of Berlin and Milan, inasmuch, as long as the former continued in force, France was interdicted to the Americans. And yet we find, in a letter of the Duke of Cadore, of the 7th day of September, our Minister inquiring, "Has the decree of His Majesty of the 22d day of March last been recalled?" And General Armstrong, in his letter to Mr. Smith of the 10th of September, remarks, that this inquiry "may appear to have been useless, after the declaration, that American ships which will hereafter arrive in the ports of France shall not be subject to confiscation; but understanding from the Council of Prizes, that until some act be taken which had the effect of recalling, by name, the decree of the 23d of March, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again.

Here, then, we have the opinion of the French court, most known and most important to us, the Court of Prizes, that the letter of the Duke of Cadore is not in the form of a decree, and has not the force and effect of a decree. In addition to this, we have the act of seizure of the brig New Orleans Packet, by the director of the customs at Bordeaux, in December last, under the Berlin and Milan decrees. As the letter of the Duke of Cadore had been published in France prior to this period, no one will believe that if it was in form of an edict of the Empire, the seizure would have been made.

But if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the Berlin and Milan decrees, as that they ceased to violate our neutral commerce?

I remark first, that the revocation, if it be one, was a future and not a present revocation. "The decrees of Berlin and Milan are revoked, and, after the first of November, they will cease to have effect." Now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. As long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the 1st of November, it follows, that on no construction can they be considered as revoked until that period. Indeed, on this point the Duke of Cadore is quite explicit in his letter to General Armstrong of the 7th of September, in which he tells him, that American vessels arriving in France before the first of November, although not liable to confiscation, "will be subjected to all the effects of the Berlin and Milan decrees."

But, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the English shall revoke their Orders in Council and renounce the new principles of blockade which they have wished to establish, or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." A condition—a qualification—a restriction. Is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? The words "it being understood," are not only expressive of this, but they are singularly appropriate. If, however, we were inclined to doubt, we must be satisfied by the letter of the Duke of Cadore to General Armstrong, of September 7th, in which it is said, that the Emperor "repeals his decrees of Berlin and Milan, under the conditions pointed out in my letter to you of the 5th of August."

Our Ministers, General Armstrong and Mr. Pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. To me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. In common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. But in the view which I am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. Now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with.

First, sir, as to the conditions on the part of England: "The English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish." With respect to the Orders in Council, I have nothing to say either as to their justice or their policy. Heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and I hope the period is not far distant when we shall be no longer disturbed by them. But, sir, I wish to call your particular attention to the other branch of the condition, that relating to blockades. We have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. Are these the blockades which are intended? Let the Emperor and King answer for himself. In the official note from Count Champagny to General Armstrong, of the 22d of August, 1809, we have this declaration: "A place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists." But we have it under the hand and seal of the Emperor himself, what he means by the "new principles of blockade." In the Berlin decree there is an enumeration of real or pretended interpolations, on the part of Great Britain, in the law of nations; among which we discover these: "that England does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." And it is declared that "the decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same on land as at sea—and until the right of blockade be restrained to fortified places actually invested by competent forces."

There can be no misunderstanding on this subject. The Emperor offers to give up his Berlin and Milan decrees, if the British will renounce their new system of blockade; and in these very decrees he explains what he means by this new system; that, besides paper blockades, it is the attempt to blockade the mouths of rivers and harbors, and ports not fortified. Now, sir, I will admit, if we could prevail on Great Britain and France thus to limit the right of blockade, it would add much to our security at home; for as we have no fortified places, although we may have places with fortifications, it would follow that we should never be subject to a blockade. But is it true that according to the usages of nations this is a novel system, or one now, for the first time, put in use by the British? Or is it believed, that a nation like England, whose effective force for offence and defence is a maritime force, can or ought to subscribe to a system of blockade which confines its exercise and right to "fortified places actually invested?" What would be the effect of such a system in the present war? France has surely not to apprehend an invasion from England; and if any of the commercial places on her extensive coasts are fortified, the fortifications may be dismantled or destroyed with great safety. As soon as this is done they become "harbors and ports not fortified," and have no longer to apprehend any inconvenience from the pressure of a naval force. Is it not obvious that England will not comply with her part of the condition, and that the Emperor never expected that she would?

As to the conditions on the part of this country—"The United States, conformably to the act you have just communicated, shall cause their rights to be respected." What rights, Mr. Chairman? The right of not being vexed or endangered by paper blockades? Yes, sir, and more; the right of not being interrupted in a commercial intercourse with cities situated on rivers, as Antwerp for instance; or to carry on a free trade with all the continental ports and harbors not fortified, although the whole British navy may be cruising at the mouth of the river, or in sight of the port. But we have a further declaration of neutral rights which the French Emperor says he will allow when France has a marine proportioned to the extent of her coasts and her population, and which, so long as the British shall continue to be masters of the sea, he insists we shall claim and exercise. Thus, in the note from Count Champagny to General Armstrong, of the 22d of August, 1809, "France admits the principle that the flag covers the merchandise. A merchant vessel, sailing with all the necessary papers from its Government, is a floating colony. To do violence to such a vessel by visits, by searches, and by other acts of an arbitrary authority, is to violate the territory of a colony. This is to infringe on the independence of its Government." In other words, the flag is to protect the property, and search is not to be permitted. I pray you, sir, to bear in mind, that since the formation of this Government, and under every Administration, the right of blockading, by an actual present and efficient force, ports and places not fortified; the right of search, and the principle, that enemy property is not protected by the character of the vessel, has been recognized or conceded.

But how are we to cause these rights to be respected? By putting in force the non-importation law? Suppose the British should not believe themselves excessively injured by this measure; that, in fact, it operated to their advantage, and we are suffered to bring on premature decay and old age, by this political quackery. Would this satisfy the Emperor? No, sir. He would soon tell us that we had not caused our rights to be respected. It is idle to believe that he will deem the non-importation a compliance with his condition; nor, to me, does his language convey this idea. We are to oppose, or declare ourselves against the British, and in the spirit of our law and of his declaration, we are to cause our rights to be respected, not by self-destroying measures, but by actual force and open hostility, if the English nation will not, without it, subscribe to the terms which have been presented to it. Recollect the history of our embargo and former non-intercourse, the propositions made under them by our Government to the French Government, and how these propositions were received, and you will be satisfied of the nature and extent of the present condition.

And now, let me ask, whether we are prepared for these conditions? Whether we believe in all the rights which the French Emperor condescends to claim for us from the British, although he will not admit them himself? And whether we are prepared to go to war for them? To me the conditions, both on the part of this country and Great Britain, appear inadmissible. At all events, I think that the President, before he acted on a proposition so loose and general, which admits of so much doubt, and can, by fair construction, be carried to such extravagant lengths, ought to have asked and received explanations and particulars.

But it may be said that the letter of the Duke of Cadore, if not itself a decree, is evidence that there is a rescinding decree. To my mind, Mr. Chairman, it has internal marks to the contrary; but, without troubling the committee with any further comments on the letter, I observe, that viewing it as a mere matter of evidence, it may be fortified or explained by other evidence. I have already read to you parts of the letters from Secretary Smith to General Armstrong, of the 5th of June and the 5th of July, which declare the determination of the President not to carry the non-intercourse law into effect against England, unless France not only revoked her decrees, but restored our sequestered property. We are to presume that our Minister made known this determination to the French Court, as it was his duty so to do. Now, with this declaration before him, is it to be credited that the Emperor would revoke his decrees, when he was given to understand that the revocation would lead to no result on our part, inasmuch as he did not release our property? Is it not obvious, from this circumstance alone, that the letter is a mere proposition in answer to the one made by our Government, expressive of the views, and stating the terms on which the Emperor would revoke?

Again, sir, we have the letter of Mr. Russell to Secretary Smith, of the 11th of December, 1810, informing our Government that the brig New Orleans Packet had been seized at Bordeaux a few days before, under the Berlin and Milan decrees, by the director of the customs. And we have had communicated to us, by the President, the note from Mr. Russell to the Duke of Cadore, of the 10th of December, stating this seizure to have been made under the decrees, and giving an additional fact, that the case of this vessel was the first which had occurred after the first of November, to which the decrees could be applied. As this seizure was made under the decrees, it shows the impression in France to be, that they still are existing and in force; and the evidence is the stronger, as coming from the custom-house of one of the principal trading towns, where surely the revocation must have been officially known, if it had taken place. I am aware it is said that Mr. Russell must have been misinformed as to the cause of the seizure, or that the custom-house officer mistook his duty. But as to both of these suggestions, I will only remind you of the silence of the French Government. The remonstrance of Mr. Russell was handed to the French Minister on the 10th of December, and the vessel which bore the despatches, brought Paris accounts to the 27th of December, and did not leave France until the 1st of January. If Mr. Russell had any explanation or answer from the French Government it would have been communicated to us; but he had none. The silence of the French Minister is equal to an express affirmance of the act of the custom-house officer, and is an admission that the decrees have not been revoked.

Saturday, Feb. 9.

Commercial Intercourse.

On motion of Mr. Eppes all the orders of the day were laid on the table, and the House resolved itself into a Committee of the Whole on the bill supplementary to the act concerning commercial intercourse, &c.

Mr. Emott's motion being under consideration, to amend the bill so as to repeal the law of May last, &c., Mr. Rhea made a motion superseding that, viz: to strike out the whole of the bill.

Mr. Eppes said, that when, on a former day, this bill, designed only for the relief of our own citizens, was under discussion, subjects not at all connected with its merits were brought into view. A gentleman from New York (Mr. Emott) presented to the House on that occasion his view of our foreign relations, and exercised all his ingenuity to show, as it is but too often the practice here, that the Government of the United States is exclusively wrong, and the Government of Great Britain exclusively right. It seems that in this enlightened age new duties are assigned to a Representative. Under the pressure of every injury which foreign influence can inflict, a Representative is considered as discharging his duty, if, with a fine-spun web, he can present, under a suspicious aspect, either the motives or the acts of the Executive branch of his Government. No nation, ancient or modern, unless in the last stage of corruption, can be produced where, as in the United States, periods of difficulty have been seized by the Representatives, and the weight of their talents exclusively employed for increasing the public embarrassments. The speech of the gentleman from New York, however well he may have covered it under mildness of manner and a fine-spun argument, is designed to convey to the people an idea, that the Executive has manifested partiality towards France in the late arrangement. The gentleman tells us, that while the Minister of one foreign nation was denounced here for an implied insult, the letter of the Duc de Cadore to Mr. Armstrong is passed over almost in silence; that the Secretary of State, in a letter to General Armstrong, tells him that the President thinks it unnecessary to make any remarks on it. The gentleman ought to have gone further, and stated the whole fact: that the letter of General Armstrong in answer to the Duc de Cadore was approved by the President; that, by the approval, he adopts as his own the language and sentiments of that letter. The letter of General Armstrong, by the approval of the President, has become the act of his Government. For the sentiments contained in that letter the American Government is responsible, and not General Armstrong. The firm, manly, and eloquent reply of General Armstrong to the Duc de Cadore stands precisely on the same footing as if it had been originally written under the directions of the Government. General Armstrong did not wait for instructions. He repelled, in a style comporting with the dignity of his station, the charges of the Duc de Cadore. The President, through the Secretary of State, approves his letter, adopts it as his own, and says he has nothing to add. Well, indeed, sir, might he say so, because the Minister had already said, in a style as pleasing to his country as to his Government, all that the occasion demanded. But, sir, the gentleman from New York cannot agree with his colleague in considering the President of the United States correct in issuing his proclamation. Why, sir, does the gentleman disapprove of the President's proclamation? Because, says the gentleman, the letter of the Duc de Cadore, of August, was not a repeal of the Berlin and Milan decrees. It is a mere promise that on a certain day they shall be withdrawn. When, sir, the President received the declaration of Mr. Erskine, the British Minister, that, on a particular day, the Orders in Council would be withdrawn, and issued a proclamation founded solely on that declaration, his conduct was warmly approved by men of all parties. The gentleman from New York joined in the burst of applause heaped on that Executive act. Was the letter of Mr. Erskine a repeal of the British orders? Unfortunately, we know practically it was not. Was it such a repeal as the gentleman contends ought to have taken place of the Berlin and Milan decrees, viz: under the sign manual of the Emperor? No, sir, it was just such a letter as that of the Duc de Cadore. In both cases the word of the Minister was taken as a pledge, and, on examining the two letters, so far as they may be considered a pledge, the words are nearly the same. I approved of the arrangement with Mr. Erskine; so did the gentleman from New York. I cannot see any difference in the ground taken by the Executive, except that one arrangement was with Great Britain, and the other with France. The one affected the interests of Great Britain; the other affects the interests of France. The gentleman from New York, more nice in distinctions than myself, may, perhaps, satisfy himself and the people that these two cases are marked by lines so strong as to render the conduct of the Executive in the one case an object of applause and approbation for himself and his friends, and in the other of suspicion and censure. It is not, however, my intention to pursue the gentleman through his argument. There is one part of it which I consider it a duty to pass in review, inasmuch as it is calculated to give to the public an erroneous view of the grounds taken by the Executive in the recent negotiation with Great Britain. The gentleman says, the President has not only required of Great Britain to withdraw her orders, but her blockades also. This, he says, she cannot and never will yield. This declaration is made, too, in the presence of the agent of Great Britain, who must have heard with delight the American Executive held up to suspicion, and an American Representative declare, on the floor of Congress, that demands were made on Great Britain, not sanctioned by the law of the last session. In order, sir, to support this declaration, the gentleman gives a view of the demands of the Executive on Great Britain totally incorrect and contradicted by every part of the correspondence before us. The gentleman tells you, that we have demanded of Great Britain not a withdrawal of the Orders in Council only, as contemplated by the law of last session, but of her "novel blockades." To establish the demands of the Executive, he turns, not to the correspondence, but to the Berlin or Milan decrees, and takes for our demand on Great Britain the definition of blockade given by the French Emperor. The gentleman is entirely mistaken as to the demand made of Great Britain by the Executive. The revocation of but one blockade, viz: that of May, 1806, is included in the demand of the Executive. The features of this blockade render it different from all other blockades. It is, in fact, from its character, more like the Order in Council, a permanent regulation in commerce, than a blockade. I will, however, first show from the correspondence, that the President did not, under the act of the last session, require the revocation by Great Britain of any blockade except that of May, 1806; and then, that from the peculiar features of that blockade, it must have been included in the demand made under the act of the last session. In the Message of the President, at the commencement of the session, pages 4th and 5th, we find the demand stated in the following terms: