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

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 CongressAMENDMENT 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:

Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, That the following section be submitted to the Legislatures of the several States, which, when ratified by the Legislatures of three-fourths of the States, shall be valid and binding as a part of the Constitution of the United States:

Resolved, That the judges, both of the Supreme and Inferior Courts, may be removed from office on the joint address of the Senate and House of Representatives of the United States.

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:

A bill supplementary to the act, entitled "An act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes."

Be it enacted, &c., That no vessel owned wholly by a citizen or citizens of the United States, which shall have departed from a British port prior to the second day of February, one thousand eight hundred and eleven, and no merchandise owned wholly by a citizen or citizens of the United States, imported in such vessel, shall be liable to seizure or forfeiture, on account of any infraction or presumed infraction of the provisions of the act to which this act is a supplement.

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:

"That no vessel or merchandise shall be liable to seizure or forfeiture on account of any infraction, or presumed infraction, of the provisions of the act to which this act is a supplement."

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.