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

The question recurring on filling the blank with the number of souls which should entitle to a Representative —

Mr. Macon said he was decidedly of opinion that the ratio ought to be fixed, before the result of the census was known. He had no objection to a moderate increase of the number of members; if they amounted to so many that one side of the House could not hear the other side speak, debate was at end, and the purposes of deliberative legislation defeated. He should have liked the bill better, he said, if it had declared that the House of Representatives should hereafter consist of a certain number of members, and had left the apportionment then to be made according to the population. On the subject of electioneering, he said it became him at least to say, that that portion of the people who sent him here, had not been concerned in it. Whatever might have been the practice elsewhere, so far as concerned his constituents, there had been no going about or haranguing. And, on the subject of electioneering, said he, wherever the people are free, there will be electioneering. It belongs to free government. Possibly different parts of the country may differ as to the mode. In some, men go themselves about electioneering; in others, their friends do it for them. In some, newspaper publications help an election; in others, they destroy it. In some places, I have heard, the sacred pulpit is not free from it; in others, a divine would be destroyed that would attempt it. There was not more electioneering South, Mr. M. believed, than elsewhere; certain he was that candidates could not there spend the sums of money which he had heard of being spent elsewhere in an election. He concluded by saying he was in favor of a moderate increase of representatives. He was not afraid that, from a multitude of counsellors, nothing would be done; it was quite as much to be feared from too few that they would act rashly.

Friday, December 14

Another member, to wit, from Massachusetts, Abijah Bigelow, elected to supply the vacancy occasioned by the resignation of William Stedman, appeared, was qualified, and took his seat.

Apportionment Bill

Mr. Gold considered this bill as a very important one, as fixing the construction to be put on a provision of the constitution. While, on the one hand, it might be admitted that business would be in general better done by a small number of Representatives, yet, on the other hand, there were important considerations in favor of a large number, as gentlemen would find by referring to the discussions at the period of the adoption of the constitution. It was then feared by some that the representation of so great a people would be too small. If gentlemen would refer to a number of papers, drawn up by an association of gentlemen, at that time, and published under the title of "The Federalist," they would find various arguments used to induce the Legislature to make the representation full; so that, at that period, no apprehensions had existed of the Representatives becoming too numerous. On the contrary, it was supposed that the public confidence would be impaired by having a small delegation. In adverting to the relaxed state of the Union, and how much it was exposed to be shook by attempts to weaken it, it was supposed that public confidence would be inspired, and general satisfaction given, by the selection of a large number. It was true, Mr. G. said, that representation might swell so much as to operate to the exclusion of legislation; but the House of Representatives would not, even if the present ratio were retained, be so numerous as many other legislative bodies in the Union. He had no objection to increasing the numbers of the House of Representatives to such an amount as would permit public business to be done with facility. Gentlemen might differ as to the precise ratio; but, while they argued in favor of a small number, from the inconvenience of a large delegation, he hoped they would conceive with him that well-grounded apprehensions might be entertained of the evils which would result from its being too small.

Mr. Mitchill said he was in favor of the largest number proposed; and, not having been able to obtain that, he should vote for the largest on which a majority could agree. In the district represented by his colleague (Mr. Mumford) and himself, there was probably one hundred and twenty thousand souls, and yet he had not heard any murmuring that they were not adequately represented.

Congress, Mr. M. said, did not convene here to legislate on all the subjects of the rights of citizens. Our Government is, he contended, a peculiar piece of machinery, an imperium in imperio. The Representatives to Congress left behind them Legislatures, whose province it was to take care of the personal rights and the rights of property of our citizens. With these concerns, said Mr. M., we have nothing to do. We meet here under a constitution expressly framed and devised for legislating on select subjects, which, on account of the generality of their nature, could not be confided to the several States. When, then, we consider the narrow grounds we have to legislate on, that our great privileges are left at home, we shall be convinced that there is no occasion that this body should be as numerous as if we were concerned in the great questions of property and right, which are secured by the constitution, under the guardianship of the State Legislatures, and of the courts for the furthering of justice. If I were to quote a precedent of a Legislature for commanding influence, and for wisdom and sagacity in carrying us through an arduous contest whilst struggling for our liberties, I should quote the Old Congress – limited in number, but remarkable for the honesty and fidelity with which they performed what a more numerous body could not have accomplished. And, if I wished to cite an instance of the evils to be dreaded from a numerous assembly, I should quote the National Convention of France, where representatives, assembling in great number, exhibited such a spectacle of disorder as I hope we shall never, by a multitude of counsellors, run the risk of imitating.

Mr. Pitkin said that he had not expected that a bill of so much importance would have progressed so far, and gone through the Committee of the Whole in so rapid a manner as this had. What, he asked of the House, was settled by the passage of this bill? Nothing was, or could be settled by the present Congress, unless the returns were made from the different States of the number of inhabitants in each State, before the bill became a law; for Congress alone could designate and specify the number of Representatives which each State should send. The laws heretofore passed, designating the number of Representatives, had, at the same time, declared the ratio, and specified the number of Representatives of each State. Congress alone were competent to decide on the legality of the returns, and on their act alone could the State Legislatures proceed. Mr. P. presumed no member would say that it should be left to the Executive, or any Department of the Government, to say how many Representatives each State should send to Congress. The present Congress might fix the ratio as they pleased, but it would not be obligatory on the next Congress, who could, and undoubtedly would, modify or reverse it as they should think proper. This bill was, therefore, premature, and, in fact, would not settle the principle which it proposed to decide. He was, therefore, on this ground, opposed to the passage of this bill; and he believed the inconvenience of deciding it now would be greater than if the business were to rest until after the returns were made.

Mr. Quincy said that the agitation of this question at the present moment had taken him as much by surprise as it had the gentleman from Connecticut. He had no idea that a question so pregnant with interest would be hurried through the House in this way. His object in rising was to obtain a postponement of the question till some time in the next week, for the consideration of a point, which to his mind was important. He objected to the bill on the principle that it would be a violation of the constitution to pass it. It went to establish a ratio which, in its effect, must be abortive. The constitution says:

"Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three-fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative."

The constitution then had specifically made it the duty of the House to apportion the representation of each State according to its respective numbers. Was it not, he asked, infinitely absurd and a direct violation of the constitution, to apportion the representation before these numbers were known? When the constitution had made it a duty to do a thing according to a standard prescribed, would they do that thing before that standard could be in possession of the House? Suppose that in 1791, before the numbers of the States were known, Congress had undertaken to fix the ratio of representation – would not the Hall have rung with the exclamations that it was a violation of the constitution? And how would this bill, Mr. Q. asked, less violate the constitution than such an act would have done? For, as to the numbers to be ascertained by the present census, Congress were as little competent to decide as they were before any census was taken. This was the ground on which he objected to the bill as unconstitutional, and which he wished an opportunity thoroughly to examine. He therefore moved that the bill lie on the table.

Mr. Fisk said it had been deemed desirable to fix the ratio before the numbers of each State were ascertained, so as to avoid the difficulty which would arise from the fractions, and to afford an accommodation to the State Legislatures, which would be in session before the next meeting of Congress. It would indeed be necessary to pass a law declaring the number of Representatives to be sent by each State; but that would be a mere matter of form, if the ratio were previously ascertained by law.

Mr. F. treated the idea of this bill's being unconstitutional, as altogether unwarranted by fact; for it did not fix the apportionment, but merely the ratio, according to which the Representatives should be apportioned among the States when their respective numbers were known.

Mr. Wright was in favor of postponing, and decidedly opposed to the bill. He was against it, because it proposed to bestow on others a power residing in Congress. If this law were to pass, could the Secretary of State be authorized to declare the number of Representatives to which each State was entitled? Could Congress transfer to him legislative power, and authorize him to declare of how many members this body should consist? He presumed not. The power was vested in Congress, and not in the Secretary of State. But gentlemen were desirous now to fix the number of souls which should entitle to a Representative – and why? That the State Legislatures, understanding the number of Representatives to which they are entitled from knowing the census, may proceed to district their States, in anticipation of the law to be passed by Congress. But their acts would not be conclusive, because Congress might change the ratio, and they would have to undo all they had done. Mr. W. hoped that this business would be postponed, until, as heretofore, Congress would be possessed of all the information of which the nature of the case would admit. When the census was received from the President of the United States they would be much better able to act than now. In this case, Mr. W. said he held himself imperiously bound to follow the steps of his predecessors. He held it a correct maxim in general, that the practice of to-day should be the precedent for to-morrow. Why need they decide this business immediately? There was yet some months in the session, and time enough to reflect on the subject. Why legislate by halves? If this law were passed, Mr. W. asked, was it perfect? Did it declare to how many Representatives each State should be entitled? He said he could refer to cases in which errors had occurred in the census; and it was in the power of the House alone to correct any errors which might have escaped the Secretary of State. In Maryland a mistake had occurred in the last enumeration, of thirty or forty thousand souls. He believed that a great portion of the district comprising Cecil and Hartford counties had been omitted; and he recollected perfectly well that the error was corrected; and, by turning his eye to the proceedings of that day, he could see other errors. He wished, when the House acted, that they should do it understandingly, and with all the evidence before them of which the case was susceptible. He hoped the bill would be postponed until the returns of the census were received in the usual mode.

Mr. W. Alston opposed the postponement. He was as loth to depart from old practices as the gentleman from Maryland, if those practices were found to be good. But when they proved inconvenient or useless, it was certainly right to depart from them. What, then, had experience taught them on this subject? Why, that if the ratio was not fixed before the census was known, great inconvenience would result to many States. Congress, at their last session, being apprised of the circumstance, had in their law directed that complete returns should be made to the Secretary of State by the first of March next. It was well known that, if they did not fix the ratio before the first of March, they would not be able to fix it after; when the ratio was fixed, however, the apportionment would not be the work of an hour. If it became necessary to deprive a State of a Representative, he asked whether it would not be more palatable that it should be done now than after the census was known? The State deprived of a Representative could not complain; the ratio would affect it in the same proportion, whether it gave or took a member. That argument, therefore, was entitled to no consideration. Mr. A. expressed his surprise that the small States appeared to be opposed to a large ratio; for, if it would be an advantage on any side, it would be decidedly in favor of the small States. He thought, indeed, that the Representatives of the large States, in voting for a large ratio, had shown great magnanimity and liberality.

Mr. Goldsborough was in favor of postponement, and was sorry to see the bill attempted to be hurried through. Gentlemen had not maturely considered the subject, and, on reflection, would be convinced that their votes were, if not a direct, at least an indirect, violation of the constitution. This was premature legislation on what properly belonged to the next Congress, and which, act on it as they might, would unquestionably come before Congress at their next session. If it should be found that the ratio agreed on operated unfavorably on the numbers of any State or States, they would be anxious for a reconsideration of the subject. It would be immaterial whether the subject should be brought up by a bill de novo, or by a bill to repeal this, if it should indeed become a law; the ardor of discussion would be the same in either case. If this be admitted, the only argument in favor of the bill is done away. The constitution having directed that apportionment should be made accordingly to the whole census, Mr. G. said that he could not see how Congress could fix it before they knew what that census was. He did not know that every gentleman on the floor was ignorant of any of the returns; some might be already apprised of the returns of their own State. Each one made estimates no doubt, in his own mind, as to the probable result; and, for himself, Mr. G. said he had been endeavoring to make some sort of a calculation; and if the bill passed, and the ratio should prove unfavorable to the numbers of the State which he had the honor to represent, he should feel himself bound to move a repeal of the law; and they would have the whole discussion over again.

The question on the bill's laying on the table was carried – 65 to 43.

And on motion, the House adjourned until Monday.

Monday, December 17

Another member, to wit, from New York, John Nicholson, appeared, and took his seat in the House.

Tuesday, December 18

Another member, to wit, from Massachusetts, Barzillai Gannett, appeared, and took his seat.

George Poindexter, the delegate from the Mississippi Territory, also appeared, and took his seat.

Friday, December 21

Two other members, to wit: from Virginia, John Clopton, and Walter Jones, appeared and took their seats; a new member, to wit, William McKinley, also from Virginia, appeared, was qualified, and took his seat.

Monday, December 24

Three other members, to wit: William Hale, from New Hampshire; Benjamin Pickman, jr., from Massachusetts; and Thomas Newbold, from New Jersey, appeared, and took their seats.

Claims for Military Services in the Old French War

Mr. Morrow, from the Committee on the Public Lands, made a report on the several petitions of the officers and soldiers, and the heirs of officers and soldiers who served in the British army in America, in the war between Great Britain and France; which was read, and the resolution therein contained concurred in by the House.

The report is as follows:

The Committee on Public Lands, to whom was referred several petitions, claiming lands for military services, performed in the war of 1755, between Great Britain and France, report:

That, considering the subject-matter of the said petitions highly important, on account of the interest it has recently excited, and the speculation it has given rise to in various parts of the United States, the committee have carefully examined the State papers and public documents, of the period of the above war, to ascertain the original foundation of the supposed claim. In pursuing this investigation, the committee have not been able to discover that any engagement or contract whatever was made or entered into by the Government, or under the authority of Great Britain, with the officers and soldiers of the provincial troops, serving in the war aforesaid, for a grant of lands, either as an encouragement to their entering into the service, or as a compensation for services. All that the committee have been able to find on the subject is in a proclamation of the King of Great Britain, of the 7th of October, 1763, (after the closing of the war and disbanding of the troops,) and in the following words:

"And whereas we are desirous, upon all occasions, to testify our royal sense and approbation of the conduct and bravery of the officers and soldiers of our army, and to reward the same, we do hereby command and empower our Governors of the several provinces on the Continent of North America to grant, without fee or reward, to such reduced officers as have served in North America during the late war, and are actually residing there, and shall personally apply for the same, the following quantities of land, subject, at the expiration of ten years, to the same quit-rents as other lands are subject to, in the province within which they are granted, as also subject to the same conditions of cultivation and improvement, viz:

"To every person having the rank of a field officer, 5,000 acres.

"To every captain, 3,000 acres.

"To every subaltern or staff officer, 2,600 acres.

"To every non-commissioned officer, 200 acres.

"To every private man, 50 acres.

"We do likewise authorize and require the Governors and commanders-in-chief of all our said colonies, upon the Continent of North America, to grant the like quantities of land, and upon the same conditions, to such reduced officers of our navy of like rank, as served on board of our ships of war in North America, at the times of the reduction of Louisburg and Quebec, in the late war, and who shall personally apply to our respective Governors for such grants."

In this State paper, the committee can perceive no foundation whatever for the present claim upon the United States. Instead of a contract with the officers and soldiers for land, the proclamation contains a mere instruction to the provincial Governors – an instruction emanating from the munificence of the Sovereign, and for conferring a gratuity, not issued for the satisfaction of any previous claim or demand upon Government. That the grant intended by the above proclamation was rather a testimony of respect and approbation, than a donation of value, appears from the prescribed terms on which it was to be made, they being the same on which lands were granted to others in the provinces, with the exception, that the military grants were to be made free of office fees, and exempt from payment of quit-rents for ten years. Had application been made to the land offices of the provincial governments, as was the duty of all the claimants, there can be no doubt but that grants would have been readily made to the full extent of the bounty intended by the proclamation, subject, however, to the usual condition for settlement and improvement. Forty-seven years have now elapsed since the foregoing proclamation, during which period the above claims have laid dormant, and the committee do conceive, that, upon fair and just principles, those claims would have been considered derelict and abandoned had the Government, under which they arose, continued; but to admit them against the United States, placed as they now are, under a government founded on a revolution, which has intervened, is required by no principle of justice, and would, in the opinion of the committee, be an unauthorized disposition and sacrifice of the public property of the United States. On no principle of national law, or by any treaty or convention between the United States and Great Britain, are the United States bound to perform the engagements of the former government of Great Britain, especially for mere bounties; nor would the purposes for which the several States have ceded land, within their respective jurisdictions, to the United States, warrant the appropriation of those lands for the satisfaction of the claims in question, were the same better founded than by the committee they are conceived to be. The committee, therefore, beg leave to submit the following resolution:

Resolved, That the prayer of the petitioners ought not to be granted.

Monday, December 31

Another member, to wit, from Delaware, Nicholas Van Dyke, appeared, and took his seat.

Wednesday, January 2, 1811

Two other new members, to wit: from New Hampshire, Nathaniel A. Haven; and from Maryland, John Campbell, appeared, and took their seats.

Orleans Territory

The House resolved itself into a Committee of the Whole, on the bill for admitting the Territory of Orleans as a State into the Union.

Mr. Bibb said it was very far from his intention to oppose the passage of the bill. On the contrary, he was favorably disposed to it; but a difficulty had occurred to him which he would state as a reason for delaying a decision on the bill for the present. The bill proposed including in the State all that part of the Territory which lay west of the Perdido, &c. The President, by his Proclamation, although he had required its occupation, he declared that the right should be subject to negotiation. Now, if it became a State, would not all right of negotiation on the subject be taken from the President?

Mr. Barry said that the necessity of State government, the want of proper control by the General Government, and its inability to attend to the municipal concerns of the Territory, imperiously called upon Congress to erect it into a State. It was unimportant, as respected the ratio, that the bill should be delayed till that was ascertained. Although the precise population could not be ascertained, yet, from what had fallen from the gentlemen from Orleans and Mississippi Territories, it was probable that the Territory had already a right to become a State. Mr. B. said it was important that Congress should act on this subject, for a variety of reasons. It was a point of the Union particularly important to the country which he represented. New Orleans commanded the river through which the whole productions of the Western and of some part of the Southern country were carried to market. It became important in another respect, that the people in that country should have the power of self-government. He alluded to the necessity, in the present posture of affairs, that they should have the power of self-preservation to protect themselves in the enjoyment of their rights, and that the power resulting from State sovereignty ought therefore to be extended to them at this time. The objection which has been urged, respecting the question of title, was equally unimportant. Admitted in its full force, it would only require a modification of the bill, reserving to Congress the power of changing the boundary of the Territory; and this would be a desirable modification because of the undefined limits of the Territory. This objection did not meet the merits of the bill, but merely suggested a modification. It was important now to act on the subject, because Congress had the power to impose conditions on the Territory. If they waited until it had attained a population of 60,000, they could not say no to the demands of these people.