Abridgement of the Debates of Congress, from 1789 to 1856 (4 of 16 vol.)

On the ground of policy I presume that there is no gentleman who will contend that the power of which I wish to deprive the Governors, ought to be retained. The gentleman from Georgia himself says, that if he were about to frame an original ordinance, he would not think of such a power. As the opinion of Judge Tucker has been referred to on one subject, I will refer to it on the subject of prerogative. Let it be recollected, that the power to prorogue and dissolve is one of the highest prerogatives of the King of England: that it crept into the governments of his colonies, and thence into this ordinance, previous to the adoption of the constitution. It now remains for the United States to say, whether they will copy after Great Britain, and because it is a high prerogative, give the Governors of the Territories of the United States the same powers as she gives to her Territorial Governors. I trust it will be expunged.

"The title 'prerogative,' it is presumed, was annihilated in America with the Kingly Government." "This definition (of prerogative) is enough to make a citizen of the United States shudder at the recollection that he was born under a government in which such doctrines were received as catholic," &c.

This is the opinion of Judge Tucker. Is not this sufficient to induce us to take away from Governors this prerogative? Is not this feature modelled after the feature in the Government of England? Certainly; and that it is transferred from her Colonial Government, I can show by the present ordinance for the government of Canada, [to which Mr. P. referred.] It is the same principle, and we have copied it.

I will not object to retain this power, if any gentleman can show any advantage to be gained by it. I will suppose an extreme case; that any of the Territories designed to commit treason, and the Legislature were to pass an act giving it their sanction; (and they have shown less treasonable disposition than some of the elder States, if we may judge from occurrences of a few years past) – could not the Governor put his negative on this law? There could be no such law without his consent. It is therefore entirely unnecessary, in any possible case, to give the Governor the arbitrary power of dissolving the Legislature.

There is a special reason which has operated upon my mind as forcibly as the general reason in favor of the bill on the table. In the Territory which I have the honor to represent, we have been nearly twelve months without any Legislature. The Governor thought proper to dissolve the Assembly without any reason given, for the ordinance does not bind him to assign reasons for his acts. Within a few days, a new Council has been chosen, which may again be dissolved as soon as it meets, and the Territory again left without a Legislature, and no reason assigned for the procedure. Is it possible that this Government will sanction such arbitrary practices? If it does, it will be the first case since the Revolution in which such a procedure has been sanctioned. I beg leave to refer gentlemen to the glorious year 1776. I beg them to revert to that instrument, in which all the sins of our political father, George III., were delineated, and they will find that one of the charges against him was that he permitted his Governors to dissolve the Legislatures from time to time. Are we prepared to ingraft these arbitrary principles into our constitution, and cherish them when practised in so arbitrary a manner? Instead of this ordinance being passed with deliberation, it must have passed originally sub silentio, and been adopted for all the new Territories without any discussion at all; for, if the principle had been investigated, it would never have been enacted into a law. In the Declaration of Independence it is stated that "he (George III.) has dissolved Representative Houses repeatedly, for opposing, with manly firmness, his invasions on the rights of the people." Here we see that, at that day, we complained of the arbitrary exercise of power, and I hope that, at this day, we shall give it a death-blow. If any gentleman wishes to retain it, let him show a single possible case in which it can properly be exercised – never, but to gratify the ambition or caprice of an individual. The people elect Representatives and send them to legislate; if they do not please the Governor, he can say, "gentlemen, go to your homes – I dissolve you." Can there be any necessity for this? But I will not detain the House longer, except to express a hope that the committee will not rise, unless it be to report the bill.

Mr. Troup said he would state, in as few words as he could, his objections to the passage of the bill. It was only the day before yesterday that this bill had been introduced into the House, proposing to alter one part of the ordinance. To-day, a petition came from another territory to alter another part of it. Before they adjourned, it was ten thousand to one that not a remnant of the ordinance would be left, with their good will.

I have before stated it as my opinion, said he, that the articles of the ordinance are a compact between the people of the States and of the territories, unalterable but with the consent of both parties. With the permission of the House, I will read the opinion of Judge Tucker on this subject:

"Congress, under the former confederation, passed an ordinance July 13, 1787, for the government of the territory of the United States northwest of the Ohio, which contained, among other things, six articles, which were to be considered as articles of compact between the original States and the people and States of said territory, and to remain unalterable, except by common consent. These articles appear to have been confirmed by the sixth article of the constitution, which declares, that all debts contracted and engagements entered into, before the adoption of the constitution, shall be as valid against the United States under the constitution as under the Confederation."

In this case there are not only two but three parties to the articles – the United States, the State of Georgia, and the people of the Territories. You will recollect, as my colleague properly stated to you, that the right of soil and jurisdiction of this territory was originally in the people of Georgia. Of course Georgia had power to prescribe for the territory what form of government she pleased, provided it was republican. By the articles of cession, the right of soil and jurisdiction was ceded to the people of the United States, on the express condition that the articles of the ordinance should form the government of the Mississippi Territory, and that they should not be governed otherwise. The inference inevitably is, that the State of Georgia would not have ceded but upon the express condition; and this inference is the more inevitable, inasmuch as, in this clause, Georgia has made an express exception to a particular article in the ordinance;3 from which, I say that Georgia intended that no other alteration should be made.

What was the policy of the ordinance, and what the object of its framers? Why, assuredly, to render the governments of the Territories dependent on the Government of the United States. And how was it to be effected? By making the Territorial Legislature in a great degree dependent on the Governor, and him absolutely dependent on the Federal Executive. The moment we make the Legislature of a Territory independent of its Executive, we make it independent of the Federal Government.

And again, as my colleague has correctly told you, if you have a right to repeal one part of the ordinance, you have a right to repeal another part, and so overturn the whole system at a blow. If so, what will be the effect on the articles of cession and agreement between you and Georgia? I will tell you. By the articles of cession you reserve to yourself the right of disposing of the territory; you also agree to pay Georgia one million two hundred and fifty thousand dollars out of the product of the first sales of the land. Suppose you transferred to the independent Legislature of the Mississippi Territory the right to dispose of this Territory, what security has Georgia for the payment of her one million two hundred and fifty thousand dollars? Moreover, I feel every disposition to treat with respect the people of the Mississippi Territory, and particularly as I perceive that they approve of that course of our Government, in which I most heartily concur; yet I must say that a large majority of the people have a landed interest distinct from that of the Government of the United States. Take away from the Governor his power to prorogue and dissolve, leave him the veto, and there will soon be collision. The Legislature passes an act; the Governor puts his veto on it. The Legislature stands out, and the Governor will not yield, and eventually you may, perhaps, have to decide the question of territorial property by the sword. Recollect, that upward of six thousand people have gone over in the present year, with every apparent intention to force a settlement against your interest and that of Georgia. I am very glad that the military have received orders to disperse them. I trust that they will be dispersed, and that every man who stands forth in resistance will be put to the sword.

But the gentleman from Mississippi Territory is certainly mistaken as to one point. He seems to consider the Constitution of the United States as giving to the people of the Territories the same rights as the people of the States. It is a mistaken idea, neither warranted by the letter or spirit of the constitution. For although the constitution has declared that the people of one State are entitled to all the rights and privileges of another, yet it has not declared that the people of the Territories have the same rights as the people of the States. In another part of the constitution it is, indeed, expressly declared that Congress shall make all laws for the disposal of the Territories; but there is a salvo, that all acts done and contracts made previous to the adoption of the constitution, shall be as binding as if done afterward. The articles of the ordinance were enacted previously, and are consequently binding under the constitution. It cannot be controverted, that they were wisely adopted, and have been salutary in their operation. They were framed by the Congress of '87, composed of men whose integrity was incorruptible, and judgment almost infallible. These articles, from that time to this, have remained unaltered, and carried the Territories through difficulties, almost insuperable, to prosperity. And now, for the first or second time, an alteration is proposed, the consequence of which cannot be foreseen, without any evidence that it is either necessary or expedient.

The population of every new country must necessarily be composed of a heterogeneous mixture of various tempers, characters, and interests. In a population thus composed, it would be highly ridiculous to expect that love of order and obedience to law would always predominate. Therefore the old Congress wisely reserved to itself the right to control them; to give the Governor power, when a Legislature became disorderly, to dissolve them; and for the exercise of this power he is accountable to the General Government.

The gentleman from Mississippi wishes us not to treat the Territories as children, whose wild extravagances may require correcting by the indulgent hand of their parents, but as the equals of the States, without any other reason than that which he states to be the situation of the people of his Territory. They will next wish us to admit them into the Union before their population will authorize it; tell us that that Territory does not grow fast enough, and we must demolish the system for their convenience.

Mr. T. adverted to the representation made by Mr. Poindexter, of the state of things now existing in the Mississippi Territory. If such were the situation of the Territory, and Mr. T. said he sincerely regretted it, he could put the gentleman in a way of settling the dispute in a regular and constitutional way, and which would be the most prudent and advisable. Certainly, in this dispute, one of the parties must be right and the other wrong. They had nothing to do but prefer their complaints before the proper authority, and, if they were there substantiated, they would obtain redress of their wrongs. If, on the contrary, the people were wrong and the Governor right, the wisdom of this part of the ordinance would be proved beyond question.

Mr. Poindexter observed that the gentleman from Georgia had set out with telling the House that if the Legislature were made independent of the Governor, they could pass any law they pleased respecting land titles. The gentleman could not have looked at the ordinance, for there was an express provision that the Legislature should "never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil," &c. Independent of this, it is control sufficient if the Governor have a veto on the laws. The gentleman has told you, said Mr. P., that these articles are unalterable but with common consent. When up before, I read that part which is unalterable. It is the articles of ordinance and not the form of government; and to this Judge Tucker refers when he speaks of it. The gentleman has said, that the situation of the people would not be bettered by taking away the power, if the veto were left. In my opinion it would be ameliorated. Let the Governor retain his veto, but let them remain in session, and pass laws, that the General Government may see whether such laws are worthy of rejection or of approbation. Now, if the Governor discovers them about to pass a law or do an act he does not like, he sends them home. Lop off a little of this Executive power, and let the Legislature pass laws which he may negative, and the General Government will have an opportunity of seeing that the Governor will not consent to proper laws. Trust your Executive and distrust the people, and you sap the foundation of the Government. Whatever leads to the conclusion that the people are always wrong and the Executive right, strikes at the root of republican institutions.

The gentleman has spoken of the wildness and extravagance of the people of the Mississippi Territory. Does he recollect the invasion of the Spaniards two years ago? That, at a few days' notice, at the requisition of the Commander-in-chief, a detachment of two hundred and fifty militia were sixty miles on their march? When an arch traitor from the East designed to sever the Union, the people of the Territory, without call, assembled near the city of Natchez, and arrested the traitor. These proceedings cannot be exceeded even by the spirit or prudence of the State of Georgia. I hope the indignation of this House will be displayed at these insinuations against the motives of people who have manifested the greatest patriotism. In respect to the late measures of the General Government, no people feel them more severely than the people of Mississippi, and no people better support them. There may be symptoms of wildness and extravagance, but they show a submission to the laws and measures of the Union.

The gentleman talks of tender parents. If he considers the State of Georgia as one of our tender parents, I protest against it. Although she be one of our parents, there has been no proposition ever made on this floor, for the good of the Territory, which has not met the opposition of that State. But these are subjects on which I will not dwell.

The gentleman has stated that a number of people have gone over to the Mississippi Territory to settle lands, against the express provisions of the law. That, under the pretext of a purchase from an Indian, named Double Head, people have gone over to settle lands, is true; but from where? From Georgia. They are citizens of Georgia; people nurtured by this tender parent into a state of manhood, and unwilling to participate longer in the tender cares of the State of Georgia. They have been, very properly, ordered to be driven off by military force, because they have infringed a law of the United States. But these things do not touch the present question. I now propose to take away a power which has been, by mistake, incorporated into the constitution of a free people.

Mr. Bib said that the State of Georgia had never undertaken to legislate for the Mississippi Territory; but there was a compact existing between the United States and Georgia, and he called upon the United States to adhere to it. They dared not violate it, except they could violate the most solemn compact – the constitution.

Mr. Troup observed that it had been said this power of the Governor was a badge of slavery copied from the British Constitution. That in many things they had been copied too far, he agreed; but as to this prerogative, it was no such badge of slavery, and was found not only in the articles of the ordinance, but in the constitutions of various States, qualified in a greater or less degree. Mr. T. quoted the constitutions of New York and Massachusetts, both which States had been considered republican. Massachusetts, to be sure, was a little wavering now, but he hoped she had not quite gone over to the enemy yet. These constitutions gave a qualified prerogative to the Governor of the State.

The committee now rose – 58 to 36.

Mr. Troup moved that the further consideration of the bill be postponed indefinitely – [equivalent to rejection.]

Mr. Poindexter calling for the yeas and nays on the motion, it was decided – yeas 57, nays 52, as follows:

Yeas. – Lemuel J. Alston, Willis Alston, jun., Ezekiel Bacon, David Bard, William W. Bibb, William Blackledge, John Blake, junior, Adam Boyd, Robert Brown, Joseph Calhoun, John Campbell, Martin Chittenden, Samuel W. Dana, John Davenport, jun., William Ely, William Findlay, Francis Gardner, Charles Goldsborough, Edwin Gray, John Heister, William Hoge, Richard S. Jackson, Robert Jenkins, Walter Jones, James Kelly, William Kirkpatrick, John Lambert, Joseph Lewis, jun., Robert Marion, William McCreery, William Milnor, Nicholas R. Moore, Jonathan O. Mosely, Gurdon S. Mumford, Wilson C. Nicholas, Timothy Pitkin, junior, John Porter, Josiah Quincy, John Randolph, Matthias Richards, Samuel Riker, John Russell, Dennis Smelt, Henry Southard, William Stedman, Lewis B. Sturges, Peter Swart, Samuel Taggart, Benjamin Tallmadge, John Taylor, George M. Troup, Jabez Upham, James I. Van Allen, Daniel C. Verplanck, Robert Whitehill, David R. Williams, and Nathan Wilson.

Nays. – Joseph Barker, Burwell Bassett, William A. Burwell, William Butler, Matthew Clay, John Clopton, John Culpeper, John Dawson, Josiah Deane, Joseph Desha, Daniel M. Durell, James Elliot, John W. Eppes, James Fisk, Meshack Franklin, Thomas Gholson, jun., Peterson Goodwyn, Isaiah L. Green, John Harris, William Helms, James Holland, David Holmes, Benjamin Howard, Daniel Isley, Richard M. Johnson, Nathaniel Macon, Daniel Montgomery, junior, John Montgomery, Jeremiah Morrow, John Morrow, Roger Nelson, Thomas Newbold, Thomas Newton, John Pugh, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, Benjamin Say, Ebenezer Seaver, Samuel Shaw, James Sloan, John Smilie, Jedediah K. Smith, John Smith, Samuel Smith, Richard Stanford, Clement Storer, John Thompson, Archibald Van Home, Jesse Wharton, Isaac Wilbour, and Alexander Wilson.

So the bill was postponed indefinitely.

Monday, November 21

Another member, to wit, John Boyle, from Kentucky, appeared, and took his seat in the House.

Naturalized British Subjects

Mr. Howard presented a petition of sundry inhabitants of the State of Kentucky, stating that the King of Great Britain having, by his proclamation of the sixteenth of October, one thousand eight hundred and seven, claimed the allegiance of all persons who may have been born in his dominions, and were not inhabitants of the United States of America at the period of their Revolution, and disregarding the laws of naturalization in other countries, hath authorized the impressment into his service of his pretended subjects, and treated as traitors such as may have taken up arms against him in the service of their adopted country; the petitioners being, at the present time, precluded from the privilege of following commercial pursuits on the high seas in safety, therefore pray that such measures be adopted by Congress as may effectually resist the unjust assumption of power claimed and exercised by a foreign nation; and pledging themselves to support with their lives and fortunes whatever steps may be taken, or acts passed, by the General Government, for the welfare of the Union. – Referred to Mr. Howard, Mr. John Morrow, and Mr. Harris, to examine the matter thereof, and report their opinion thereupon to the House.

Miranda's Expedition

Mr. Love, from the committee to whom was referred, on the sixteenth instant, the petition of thirty-six citizens of the United States now confined at Carthagena, in South America, under sentence of slavery, made a report thereon; which was read, and ordered to be referred to a Committee of the whole House to-morrow.

The report is as follows:

That it appears, from the statement of the petitioners, that, in February, 1806, they sailed from New York on board the Leander, a ship owned by Samuel G. Ogden, the command of which was, after getting to sea, assumed by General Miranda.

That, from New York, the said ship sailed to Jacmel, where the said Miranda procured two schooners, on board which the petitioners were placed, which, together with the Leander, sailed, under the command of Miranda, about the last of March, in the same year, for the northern parts of South America, and arrived on the coast of Terra Firma in the latter part of April following.

That, upon their arrival on the said coast, the two schooners, on board which the petitioners were embarked, were captured by two Spanish armed vessels; the ship Leander, with Miranda on board, having made her escape.

That the petitioners, together with ten others, were convicted by a Spanish tribunal, at Porto Cabello, of the crime of piracy, from the circumstances of suspicion which attached to their situation, and not from any act of that kind committed on the high seas; that the ten others above mentioned were sentenced to death, and the petitioners some to eight, others to ten years' slavery, which they now are suffering; some chained together, others closely confined under heavy irons and a guard, destined to other places and to similar punishment.

The petitioners state that they were entrapped into the service of the said Miranda, on the said expedition, by assurances made at the time of their engagements, that they were to be employed in the service of the United States, and under the authority of the Government. For the truth of their statement, and a confirmation of the charges they make against certain persons of having thus deceived and betrayed them into an involuntary co-operation in the design of fitting out an armament against a nation in amity with the United States, they refer to the testimony of several persons, said to be inhabitants of the city of New York, and to have had proposals made to them similar to those by which the petitioners were induced to engage on board the Leander.

The petitioners also state that no opportunity was offered them of escaping from the service of the said Miranda and his associates; that they were restrained under the most rigorous discipline, and at Jacmel, the only place where an opportunity of escape might have been probable, they were strictly guarded to prevent it. For the truth of this they refer to certain captains of vessels then at Jacmel belonging to the ports of Philadelphia and Baltimore.

The committee further report that the foregoing statements of the petitioners are unaccompanied by any competent testimony in support of them, and, at the same time, are uncontradicted by any opposing circumstances; they are of opinion that a very strong probability of the petitioners not having been guilty of the crime of wilfully engaging in the unlawful expedition of Miranda attends their application: first, because the petitioners have made a detailed statement of facts relative to the deception practised on them, referring to such species of evidence as to render their contradiction easy, if not founded in truth, and thus lessen their claim on their country, and diminish their hopes of liberation: second, because it is presumed they were proven to the Spanish tribunal before which they were convicted to have been offenders in a secondary degree, those who were proven to have been more heinously guilty having been sentenced to suffer death.