SEVENTH CONGRESS.—SECOND SESSION.

BEGUN AT THE CITY OF WASHINGTON, DECEMBER 6, 1802.

PROCEEDINGS IN THE SENATE.

Monday, December 6, 1802.

In pursuance of the law of last session, the second session of the seventh Congress commenced this day, at the city of Washington, and the Senate assembled, in their Chamber, at the Capitol.

PRESENT:

Simeon Olcott, from New Hampshire.

Uriah Tracy, from Connecticut.

Christopher Ellery, from Rhode Island.

Stephen R. Bradley, from Vermont.

Samuel White, from Delaware.

Robert Wright, from Maryland.

Abraham Baldwin, from Georgia.

William Plumer, appointed a Senator by the State of New Hampshire, to supply the vacancy occasioned by the resignation of James Sheafe, produced his credentials, and took his seat in the Senate.

The number of members assembled not being sufficient to form a quorum, the Senate adjourned.

Tuesday, December 7.

Mr. Breckenridge, from Kentucky; Mr. Foster, from Rhode Island; Mr. Howard, from Maryland; and Mr. Logan, from Pennsylvania, severally attended.

There being no quorum, the Senate adjourned.

Wednesday, December 8.

The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned.

Thursday, December 9.

The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned.

Friday, December 10.

Mr. S. T. Mason, from Virginia, attended.

The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned.

Saturday, December 11.

Mr. Franklin, from North Carolina, attended.

The number of members assembled not being sufficient to constitute a quorum, the Senate adjourned.

Monday, December 13.

Mr. J. Mason, from Massachusetts; Mr. Dayton, and Mr. Ogden, from New Jersey; and Mr. Sumter, from South Carolina, severally attended.

The Vice President being absent, the Senate proceeded to the choice of a President, pro tempore, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority.

Mr. Bradley had 7, Mr. Tracy had 7, Mr. Baldwin 1, Mr. Dayton 1, Mr. Logan 1.

There was consequently no choice. Whereupon, the Senate proceeded to the election of a President, pro tempore, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority.

Mr. Bradley had 8, Mr. Tracy 7, Mr. Dayton 1, Mr. Logan 1.

There was consequently no choice. Whereupon the Senate proceeded to the election of a President pro tempore, as the Constitution provides, and the ballots being counted, the whole number was found to be 17, of which 9 make a majority.

Mr. Bradley had 8, Mr. Tracy 7, Mr. Dayton 1, Mr. Logan 1.

There was consequently no choice. Whereupon, the Senate proceeded to the election of a President, pro tempore, as the constitution provides, and the ballots being counted, the whole number of votes was 14, of which 8 make a majority.

Mr. Tracy had 7, Mr. Bradley 5, Mr. Dayton 1, Mr. Logan 1.

There was consequently no choice; and the Senate adjourned.

Tuesday, December 14.

The Vice President being absent, the Senate proceeded to the choice of a President, pro tempore, as the constitution provides, and the ballots being collected and counted, the whole number was found to be 17, of which 9 make a majority.

Mr. Bradley had 9, Mr. Tracy 7, Mr. Dayton 1.

Consequently, Stephen R. Bradley was elected President of the Senate, pro tempore.

The credentials of Mr. Plumer, appointed a Senator by the State of New Hampshire, to supply a vacancy occasioned by the resignation of James Sheafe, Esq., were read; and the oath prescribed by law was administered to him by the President.

Ordered, That the Secretary wait on the President of the United States, and acquaint him that a quorum of the Senate is assembled, and that, in the absence of the Vice President, they have elected Stephen R. Bradley, President of the Senate, pro tempore.

A similar notice was directed to be given to the House of Representatives, and also that the Senate are ready to proceed to business.

On motion, it was agreed to proceed to the choice of a Chaplain on the part of the Senate, and the ballots having been collected and counted, the whole number was 17, of which 9 is the majority.

Doctor Gantt had 10, Mr. M'Cormick 4, Mr. Priestley 2, Mr. Balch 1.

So it was Resolved, That the Rev. Dr. Gantt be the Chaplain to Congress, on the part of the Senate, during the present session.

Wednesday, December 15.

The following Message was received from the President of the United States:

To the Senate and House of Representatives of the United States:

When we assemble together, fellow-citizens, to consider the state of our beloved country, our just attentions are first drawn to those pleasing circumstances which mark the goodness of that Being from whose favor they flow, and the large measure of thankfulness we owe for his bounty. Another year has come around, and finds us still blessed with peace and friendship abroad; law, order, and religion, at home; good affection and harmony with our Indian neighbors; our burdens lightened, yet our income sufficient for the public wants, and the produce of the year great beyond example. These, fellow-citizens, are the circumstances under which we meet: and we remark, with special satisfaction, those which, under the smiles of Providence, result from the skill, industry, and order of our citizens, managing their own affairs in their own way, and for their own use, unembarrassed by too much regulation, unoppressed by fiscal exactions.

On the restoration of peace in Europe, that portion of the general carrying trade which had fallen to our share during the war, was abridged by the returning competition of the belligerent powers. This was to be expected, and was just. But, in addition, we find in some parts of Europe monopolizing discriminations, which, in the form of duties, tend effectually to prohibit the carrying thither our own produce in our own vessels. From existing amities, and a spirit of justice, it is hoped that friendly discussion will produce a fair and adequate reciprocity. But should false calculations of interest defeat our hope, it rests with the Legislature to decide whether they will meet inequalities abroad with countervailing inequalities at home, or provide for the evil in any other way.

It is with satisfaction I lay before you an act of the British Parliament anticipating this subject so far as to authorize a mutual abolition of the duties and countervailing duties, permitted under the treaty of 1794. It shows, on their part, a spirit of justice and friendly accommodation, which it is our duty and our interest to cultivate with all nations. Whether this would produce a due equality in the navigation between the two countries is a subject for your consideration.

Another circumstance which claims attention, as directly affecting the very source of our navigation, is the defect or the evasion of the law providing for the return of seamen, and particularly of those belonging to vessels sold abroad. Numbers of them, discharged in foreign ports, have been thrown on the hands of our Consuls, who, to rescue them from the dangers into which their distresses might plunge them, and save them to their country, have found it necessary, in some cases, to return them at the public charge.

The cession of the Spanish province of Louisiana to France, which took place in the course of the late war, will, if carried into effect, make a change in the aspect of our foreign relations, which will doubtless have just weight in any deliberations of the Legislature connected with that subject.

There was reason, not long since, to apprehend that the warfare in which we were engaged with Tripoli might be taken up by some other of the Barbary Powers. A reinforcement, therefore, was immediately ordered to the vessels already there. Subsequent information, however, has removed these apprehensions for the present. To secure our commerce in that sea with the smallest force competent, we have supposed it best to watch strictly the harbor of Tripoli. Still, however, the shallowness of their coast, and the want of smaller vessels on our part, has permitted some cruisers to escape unobserved; and to one of these an American vessel unfortunately fell a prey. The captain, one American seaman, and two others of color, remain prisoners with them; unless exchanged under an agreement formerly made with the Bashaw, to whom, on the faith of that, some of his captive subjects had been restored.

The convention with the State of Georgia has been ratified by their Legislature, and a repurchase from the Creeks has been consequently made of a part of the Tallassee country. In this purchase has been also comprehended a part of the lands within the fork of Oconee and Ocmulgee Rivers. The particulars of the contract will be laid before Congress so soon as they shall be in a state for communication.

In order to remove every ground of difference possible with our Indian neighbors, I have proceeded in the work of settling with them and marking the boundaries between us. That with the Choctaw nation is fixed in one part, and will be through the whole within a short time. The country to which their title had been extinguished before the Revolution is sufficient to receive a very respectable population, which Congress will probably see the expediency of encouraging so soon as the limits shall be declared. We are to view this position as an outpost of the United States, surrounded by strong neighbors, and distant from its support. And how far that monopoly which prevents population should here be guarded against, and actual habitation made a condition of the continuance of title, will be for your consideration. A prompt settlement, too, of all existing rights and claims within this Territory presents itself as a preliminary operation.

In that part of the Indiana Territory which includes Vincennes, the lines settled with the neighboring tribes fix the extinction of their title at a breadth of twenty-four leagues from east to west, and about the same length, parallel with and including the Wabash. They have also ceded a tract of four miles square, including the salt springs, near the mouth of that river.

In the department of finance it is with pleasure I inform you that the receipts of external duties for the last twelve months have exceeded those of any former year, and that the ratio of increase has been also greater than usual. This has enabled us to answer all the regular exigencies of Government, to pay from the Treasury within one year upwards of eight millions of dollars, principal and interest, of the public debt, exclusive of upwards of one million paid by the sale of bank stock, and making in the whole a reduction of nearly five millions and a half of principal, and to have now in the Treasury four millions and a half of dollars, which are in a course of application to the further discharge of debt and current demands. Experience, too, so far, authorizes us to believe, if no extraordinary event supervenes, and the expenses which will be actually incurred shall not be greater than were contemplated by Congress at their last session, that we shall not be disappointed in the expectations then formed. But, nevertheless, as the effect of peace on the amount of duties is not yet fully ascertained, it is the more necessary to practise every useful economy, and to incur no expense which may be avoided without prejudice.

No change being deemed necessary in our Military Establishment, an estimate of its expenses for the ensuing year, on its present footing, as also of the sums to be employed in fortifications, and other objects within that department, has been prepared by the Secretary of War, and will make a part of the general estimates which will be presented to you.

Considering that our regular troops are employed for local purposes, and that the militia is our general reliance for great and sudden emergencies, you will doubtless think this institution worthy of a review, and give it those improvements of which you find it susceptible.

Estimates for the Naval Department, prepared by the Secretary of the Navy, for another year, will, in like manner, be communicated with the general estimates. A small force in the Mediterranean will still be necessary to restrain the Tripoline cruisers; and the uncertain tenure of peace with some other of the Barbary Powers may eventually require that force to be augmented. The necessity of procuring some smaller vessels for that service will raise the estimate; but the difference in their maintenance will soon make it a measure of economy.

Presuming it will be deemed expedient to expend annually a convenient sum towards providing the Naval defence which our situation may require, I cannot but recommend that the first appropriations for that purpose may go to the saving what we already possess. No cares, no attentions, can preserve vessels from rapid decay, which lie in water and exposed to the sun. These decays require great and constant repairs, and will consume, if continued, a great portion of the moneys destined to Naval purposes. To avoid this waste of our resources, it is proposed to add to our navy yard here a dock, within which our present vessels may be laid up dry, and under cover from the sun. Under these circumstances, experience proves that works of wood will remain scarcely at all affected by time. The great abundance of running water which this situation possesses, at heights far above the level of the tide, if employed as is practised for lock navigation, furnishes the means for raising and laying up our vessels on a dry and sheltered bed. And should the measure be found useful here, similar depositories for laying up, as well as for building and repairing vessels, may hereafter be undertaken at other navy yards offering the same means. The plans and estimates of the work, prepared by a person of skill and experience, will be presented to you without delay; and from this it will be seen that scarcely more than has been the cost of one vessel is necessary to save the whole, and that the annual sum to be employed towards its completion may be adapted to the views of the Legislature as to Naval expenditure.

To cultivate peace, and maintain commerce and navigation in all their lawful enterprises; to foster our fisheries as nurseries of navigation and for the nurture of man, and protect the manufactures adapted to our circumstances; to preserve the faith of the nation by an exact discharge of its debts and contracts, expend the public money with the same care and economy we would practise with our own, and impose on our citizens no unnecessary burdens; to keep, in all things, within the pale of our constitutional powers, and cherish the Federal Union as the only rock of safety; these, fellow-citizens, are the landmarks by which we are to guide ourselves in all our proceedings. By continuing to make these the rule of our action, we shall endear to our countrymen the true principles of their constitution, and promote a union of sentiment and of action, equally auspicious to their happiness and safety. On my part you may count on a cordial concurrence in every measure for the public good; and on all the information I possess which may enable you to discharge to advantage the high functions with which you are invested by your country.

TH. JEFFERSON.

December 15, 1802.

The Message and papers therein referred to were read; and

Ordered, That five hundred copies of the Message of the President of the United States, together with one hundred copies of each of the papers referred to in the Message, be printed for the use of the Senate.

A message from the House of Representatives informed the Senate that the House have elected the Reverend William Parkinson a Chaplain to Congress, on their part.

Wednesday, December 22.

Dwight Foster, from the State of Massachusetts, attended.

Thursday, December 23.

Mr. Morris, from the State of New York, attended.

Monday, December 27.

Mr. Hillhouse, from the State of Connecticut, attended.

Thursday, December 30.

Mr. Anderson, and Mr. Cocke, from the State of Tennessee, severally attended.

Monday, January 3, 1803.

Mr. Nicholas, from the State of Virginia, and Mr. Wells, from the State of Delaware, attended.

Friday, January 7.

Mr. Stone, from North Carolina, attended.

The President communicated a letter signed T. Worthington, agent for the State of Ohio, enclosing a copy of the constitution of the said State, and requesting it might be laid before the Senate; and they were read, and ordered to lie for consideration.

The Senate resumed the consideration of the motion made on the 5th instant for extending the laws of the United States to the State of Ohio, together with the amendment proposed thereon; which amendment was withdrawn; and it was agreed to adopt the motion, amended as follows:

Resolved, That a committee be appointed to inquire whether any, and, if any, what Legislative measures may be necessary for admitting the State of Ohio into the Union, or for extending to that State the laws of the United States; and

Ordered, That Messrs. Breckenridge, Morris, and Anderson, be the committee, and that the letter signed T. Worthington, agent for the State of Ohio, laid before the Senate this morning, together with a copy of the constitution of said State, be referred to the same committee, to consider and report thereon.

The bill to carry into effect the several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven, was read the third time.

On motion to postpone the further consideration of this bill until the first Monday in December next, it passed in the negative—yeas 9, nays 17, as follows:

Yeas.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright.

Nays.—Messrs. Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White.

On the question, Shall this bill pass as amended? it was determined in the affirmative—yeas 18, nays 8, as follows:

Yeas.—Messrs. Baldwin, Clinton, Dayton, T. Foster, D. Foster, Franklin, Hillhouse, Howard, Jackson, Logan, J. Mason, Morris, Olcott, Plumer, Stone, Tracy, Wells, and White.

Nays.—Messrs. Anderson, Bradley, Breckenridge, Cocke, Ellery, Nicholas, Sumter, and Wright.

So it was Resolved, That this bill pass, that it be engrossed, and that the title thereof be "An act to carry into effect the several resolutions of Congress for erecting monuments to the memories of the late Generals Wooster, Herkimer, Davidson, and Scriven."

Tuesday, January 11.

In Executive session, the following Message was received from the President of the United States:

Gentlemen of the Senate:

The cession of the Spanish province of Louisiana to France, and perhaps of the Floridas, and the late suspension of our right of deposit at New Orleans, are events of primary interest to the United States. On both occasions, such measures were promptly taken as were thought most likely amicably to remove the present and to prevent future causes of inquietude. The objects of these measures were to obtain the territory on the left bank of the Mississippi, and eastward of that, if practicable, on conditions to which the proper authorities of our country would agree; or, at least, to prevent any changes which might lessen the secure exercise of our rights. While my confidence in our Minister Plenipotentiary at Paris is entire and undiminished, I still think that these objects might be promoted by joining with him a person sent from hence directly, carrying with him the feelings and sentiments of the nation, excited on the late occurrence, impressed by full communications of all the views we entertain on this interesting subject; and thus prepared to meet and to improve, to a useful result, the counter-propositions of the other contracting party, whatsoever form their interests may give to them, and to secure to us the ultimate accomplishment of our object.

I therefore nominate Robert R. Livingston to be Minister Plenipotentiary, and James Monroe to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with the First Consul of France, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof.

But as the possession of these provinces is still in Spain, and the course of events may retard or prevent the cession to France being carried into effect, to secure our object, it will be expedient to address equal powers to the Government of Spain also, to be used only in the event of its being necessary.

I therefore nominate Charles Pinckney to be Minister Plenipotentiary, and James Monroe, of Virginia, to be Minister Extraordinary and Plenipotentiary, with full powers to both, jointly, or to either, on the death of the other, to enter into a treaty or convention with His Catholic Majesty, for the purpose of enlarging, and more effectually securing, our rights and interests in the river Mississippi, and in the territories eastward thereof.

Jan. 11, 1803.

TH. JEFFERSON.

The Messages and papers therein referred to were read, and ordered that they severally lie for consideration.

Monday, January 17.

Mr. Brown, from the State of Kentucky, attended.

Wednesday, January 19.

Aaron Burr, Vice President of the United States, and President of the Senate, attended.

Thursday, January 20.

The Vice President laid before the Senate a certificate of the election of Samuel M'Clay, Esq. of Northumberland county, and State of Pennsylvania, to be a Senator of the United States from the fourth day of March next, inclusive; and it was read and ordered to lie on file.

Monday, January 24.

The Vice President communicated a letter from the Clerk of the House of Representatives of the State of Delaware, enclosing the credentials of Samuel White, Esq., elected a Senator of the United States for the term of six years, commencing on the 4th day of March next; and they were read.

Ordered, That they lie on file.

Wednesday, January 26.

James Ross, from Pennsylvania, attended.

Thursday, January 27.

Mr. Ross presented the several representations and memorials of Richard Basset, Egbert Benson, Benjamin Bourne, William Griffith, Samuel Hitchcock, B. P. Key, C. Magill, Jeremiah Smith, G. K. Taylor, William Tilghman, and Oliver Wolcott, judges of the circuit courts under the late act, entitled "An act to provide for the more convenient organization of the Courts of the United States;" stating that, since the repeal of the said act, no law had been made for assigning to them the execution of any Judicial functions, nor has any provision been made for the payment of their stipulated compensations; and most respectfully requesting Congress to review the existing laws with respect to the officers in question; and the memorials were read.

Ordered, That they be referred to Messrs. Morris, Ross, and Dayton, to consider and report thereon, and that the memorials be printed for the use of the Senate. The memorial is as follows

To the Honorable the Senate and House of Representatives in Congress assembled:

The undersigned most respectfully submit the following resolution and memorial.

By an act of Congress passed on the thirteenth day of February, in the year of our Lord one thousand eight hundred and one, entitled "An act to provide for the more convenient organization of the courts of the United States," certain judicial offices were created, and courts established, called circuit courts of the United States.

In virtue of appointments made under the Constitution of the United States, the undersigned became vested with the offices so created, and received commissions authorizing them to hold the same, with the emoluments thereunto appertaining, during their good behavior.

During the last session an act of Congress passed, by which the above-mentioned law was declared to be repealed; since which no law has been made for assigning to your memorialists the execution of any judicial functions, nor has any provision been made for the payment of their stipulated compensations.

Under these circumstances, and finding it expressly declared in the Constitution of the United States, that "The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office," the undersigned, after the most deliberate consideration, are compelled to represent it as their opinion, that the rights secured to them by the constitution, as members of the Judicial Department, have been impaired.

With this sincere conviction, and influenced by a sense of public duty, they most respectfully request of Congress to review the existing laws which respect the offices in question, and to define the duties to be performed by the undersigned, by such provisions as shall be consistent with the constitution, and the convenient administration of justice.

The right of the undersigned to their compensations, they sincerely believe to be secured by the constitution, notwithstanding any modification of the Judicial Department, which, in the opinion of Congress, public convenience may recommend. This right, however, involving a personal interest, will be cheerfully submitted to Judicial examination and decision, in such manner as the wisdom and impartiality of Congress may prescribe.

That judges should not be deprived of their offices or compensations without misbehavior appears to the undersigned to be among the first and best established principles of the American constitutions; and in the various reforms they have undergone, it has been preserved and guarded with increased solicitude.

On this basis the Constitution of the United States has laid the foundation of the Judicial Department, and expressed its meaning in terms equally plain and peremptory.

This being the deliberate and solemn opinion of the undersigned, the duty of their stations requires that they should declare it to the Legislative body. They regret the necessity which compels them to make the representation, and they confide that it will be attributed to a conviction that they ought not voluntarily to surrender rights and authorities intrusted to their protection, not for their personal advantage, but for the benefit of the community.

Thursday, February 3.

Memorial of Judges.

Agreeably to the order of the day, the Senate took into consideration the report of the committee on the several memorials of the judges, under the late act to provide for the more convenient organization of the courts of the United States. The committee report as follows:

That the petitioners were judges of certain courts, inferior to the Supreme Court, constituted by an act of the 13th of February, 1801, and duly commissioned to hold their offices during good behavior.

That, while holding and exercising their offices, an act was passed on the 8th of March last, to repeal the said act of the 13th of February, 1801, and transfer the duties of the said judges from them to others.

That a question has arisen whether, by reason of the premises, the said petitioners be deprived of their offices.

That this question, depending on the construction of the laws and Constitution of the United States, is not properly cognizable by the Senate.

The committee, therefore, conceive it improper either to give reasons or express opinions; but they consider it as a question of high and serious import, and believe that a speedy investigation and final decision is of great moment to the commonwealth.

Wherefore, they submit the following resolution.

Resolved, That the President of the United States be requested to cause an information, in the nature of a quo warranto, to be filed by the Attorney General against Richard Basset, one of the said petitioners, for the purpose of deciding judicially on their claims.

Mr. Morris said, I rise, Mr. President, as chairman of the committee whose report you have just had the goodness to read, for the purpose of explaining their reasons. If this were a common or an ordinary occasion, if no heats had been excited, if there were no unpleasant, no tormenting recollections, a measure so plain, so easy, so simple, would require neither argument nor persuasion. It would be adopted for its own interior evidence, and from the general sense of propriety. Unhappily, sir, this is not the case. Serious differences of opinion have existed, and still exist on the subject with which it is connected. From these have arisen disputes, divisions, bickerings. There is not, I fear, in the minds of men, that calm impartiality which is needful to fair investigation. There remains much of prejudice, of irritability.

Your committee have pursued the course which appeared to be proper, not only in itself, but according to the existent circumstances. Gentlemen will easily see that they might have made an elaborate report, containing a long detail of reasons to establish a favorite conclusion; and a slight knowledge of the forms of business will show, that they might have placed that report at length on your journals. But would this have been right? Would it have tended to conciliate? Would it have been a proper return for the unanimity with which your committee was chosen? Surely it would not; and is it not the duty of every good citizen to heal, as far as possible, the wounds of society? To calm those irritations which disturb its repose? To remove all things which may alarm, torment, or exacerbate?

Mr. President, your committee have no intention, no wish to revive a discussion of points already settled. While the act of last session was in agitation, we opposed it steadily, pertinaciously. But that act has become a law, and to the authority of the law we bow submissively. While in suspense, we thought it our duty, as Senators, to oppose it. But since it has been adopted, according to the forms of the constitution, we know that as citizens we are bound to obey. With these deep impressions, then, of what is due to the supreme law of our land, I shall proceed to the report of your committee, and endeavor to explain its several parts.

Gentlemen will perceive that the question which the memorialists have submitted to our investigation is, whether the law of last session has deprived them of their office of judge. Your committee consider this question as not being cognizable by the Senate. It is not for the Senate, nor the Representatives, nor both combined, to interpret their own acts. We are a part of the Legislature. A part of the Executive power is also delegated to us. If the Judiciary be added, it will constitute a tyranny. It is, indeed, the very definition of tyranny which has been given by those best acquainted with the subject. This Senate can have no wish to arrogate power. It is too just, too wise. If a sense of propriety did not prevent, prudence alone would forbid the attempt. This body is too feeble for the exercise of so much authority. Its form, its constitution, the mode and manner of its creation and existence, the strength and structure of its members, render it incapable of sustaining a greater weight of power.

Your committee, sir, have ventured to express their belief, that the question should be speedily settled. I learned in early youth, from the volumes of professional science, that it is expedient for the Commonwealth that a speedy end should be put to litigation; and if it be important that litigation should cease between man and man, how much more important that a litigated point of public right, which interests and agitates the whole community, should be laid at rest? And if this be important in the general course of things, is it not, under present circumstances, indispensable? And how is it to be effected? By an exertion of Legislative might; by force. Remember, force will excite resistance. Such is the nature of the human heart. Free citizens revolt with disdain at the exercise of force. But judgment commands their prompt, their willing obedience. When the law is known, when it is declared by the proper tribunals, all will bow to its authority. You, then, may expect a full, and quiet, and general submission. But while it is litigated and uncertain what the law is, differences will exist, and discord will prevail.

It is under these impressions, sir, that your committee have presumed to offer the resolutions on your table; and as some of the technical terms may not be familiar to every gentleman, it may be proper to state the kind of proceeding which is recommended.

The attorney general, or, as he is denominated in French idiom, the public accuser, will institute, before the proper tribunal, an inquiry by what authority these men claim to hold and exercise the office of judge. It will then be incumbent upon them, either to disclaim the office, and then there is an end of the question; or else (claiming it) to establish their right. And to do this, they must prove two things; first, that the office exists, and secondly, that of right it belongs to them. Failing of either, their claim is gone.

Now, sir, it may be well to consider the decisions which may be made, and their probable effect. I take it for granted, that these gentlemen, who have asked a Judicial decision, will not disclaim, and that whatever judgment may be given in the first instance, the cause will be brought up to the Supreme Court. If the judgment, in the last resort, should be (as it probably would be) against the claim, all complaint will be quieted, and all opposition will cease. Some then, indeed, might triumph. For my own part, I should find in it great consolation—the consolation of knowing that, however wrong may have been my own opinions, the Supreme Legislature of my country have done right. The pride of opinion might, indeed, be wounded; but God forbid, that from motives of pride, or from any other motive, I should hear, without deep concern, that the Legislature of my country have violated that sacred charter from which they derive their authority!

But suppose an opinion different, contrarient, or the very reverse (for that also is possible.) Will the judges rudely declare that you have violated the constitution, unmindful of your duty, and regardless of your oath? No. With that decency which becomes the Judicial character; that decency which upholds national dignity and impresses obedience on the public will; that decency, the handmaid of the graces, which more adorns a magistrate than ermine, aye, than royal robes; with that decency which so peculiarly befits their state and condition, they will declare what the Legislature meant. They will never presume to believe, much less to declare, that you meant to violate the constitution. There will be no dangerous and hateful clashing of public authorities. They will never question the exercise of that high discretion with which you are invested. They will not deny your full supremacy. They will not examine into your motives, nor assign improper views. They will respect you so long as they preserve a due respect for themselves. They will declare, that in assigning duties to one officer, and taking them from another, you have to consult only your own convictions of what the interest or convenience or the people may require. They will modestly conclude, that you did not mean to abolish the offices which the constitution had forbidden you to abolish; and, therefore, finding that it was not your intention to abolish, they will declare that the offices still exist. Such, sir, would be the language of your supreme Judiciary, from the high sense they entertain of their duty. And, if it were decent to suggest in this Senate, that they were lost to a sense of duty, can it be believed, that a few feeble judges will dare oppose themselves to the power of the Legislature?

The Vice President rose, and said he must call the attention of the Senate to the point in discussion, which was, whether the Senate would request the President to cause a process to be instituted for the purpose of ascertaining whether the petitioners still hold the office of judge. On this question, it could not be in order to go back to a law passed at the last session, and to discuss the merits of that law.

Mr. Jackson said, it appeared by the memorial that the petitioners considered themselves as being still judges, notwithstanding the law of last session. He thought, therefore, it could not be out of order to show that that act deprived them of their offices.

Mr. Wright premised, that he would endeavor to confine his remarks to the point before the Senate. He felt no disposition to travel again over the ground which had been traversed at the last session.

The petition was addressed to both Houses, and prayed for two things; first, that Congress, in their Legislative capacity, would assign to the petitioners some Judicial duties; and secondly, that they would authorize a Judicial investigation of their claim to compensation. The committee, therefore, ought to have confined their inquiries to these points, and to have reported accordingly. Instead of that, they had reported a resolution, which, if adopted, would be neither a grant nor a denial of the prayer of the petition. In doing this, the committee had exceeded their powers, and proposed a measure which the Senate itself was not authorized to adopt.

Mr. W. took a review of the constitutional powers of the Senate, in its Legislative and Executive capacities, and inquired, Have we any constitutional authority to make such a request of the President? In what part of the constitution is such power delegated to this House? Are we to make the request as private gentlemen, or as a constitutional organ of the Government. If as private gentlemen, the act would clearly be a nullity; the President would still be at liberty to comply with the request, or not, as he might think proper. If as a constitutional organ of the Government, where is the power given to the Senate? And what would be the remedy if he should refuse to comply? The Senate is the constitutional adviser of the President in the formation of treaties, and in the appointment of officers, &c. The constitution expressly declares that the President shall exercise these powers by and with the advice and consent of the Senate. Here, then, it is their right and their duty to advise him. But the constitution further says: "He shall take care that the laws be faithfully executed." Have the Senate any authority to advise him as to the faithful execution of the laws? They can go no further than they are expressly commissioned by the constitution. The specification of particular Executive powers, by the constitution, is a denial of all others. Admissio unius est exclusio alterius; and, as the constitution has given no power to this effect, it follows that no such power can be exercised by the Senate. If the courts have power to try the validity of laws of Congress, they can exercise that power as well without the authority of this resolution as with it. If they have not the power, neither this House nor the Legislature can give it them. The duties and the powers of the Supreme Court are defined by the constitution. Should the Senate, then, adopt the resolution, the Supreme Court would have no power to act under it, unless that power is given by the constitution. Let us, then, examine the authority of this court. The constitution says: "In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction." Will the gentlemen say that these judges are ambassadors, other public ministers or consuls, or that they are a state? If not, the Supreme Court can have no jurisdiction of the case, and the committee have imposed upon the Senate a resolution which they had no authority to submit. As to the law of the last session, by which these judges had been deprived of their offices, Mr. W. had no fear that the Supreme Court, or any body else would attempt to set it aside. The whole nation has approved the measure, as many of those who opposed it have fatally experienced.

The question on agreeing to the resolution was now taken, and determined in the negative—yeas 13, nays 15, as follows:

Yeas.—Messrs. Dayton, Dwight, Foster, Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott, Plumer, Ross, Tracy, Wells, and White.

Nays.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Brown, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, Nicholas, Stone, Sumter, and Wright.

Ordered, That the memorialists have leave to withdraw their memorial.

Monday, February 14.

The Mississippi Question.

After the Senate had finished its deliberations upon the Legislative business before it—

Mr. Ross rose and said, that although he came from a part of the country where the late events upon the Mississippi had excited great alarm and solicitude, he had hitherto forborne the expression of his sentiments, or to bring forward any measure relative to the unjustifiable, oppressive conduct of the officers of the Spanish Government at New Orleans. He had waited thus long in the hope that some person, more likely than himself to conciliate and unite the opinions of a majority of the Senate, would have offered efficacious measures for their consideration; but, seeing the session now drawing to a close, without any such proposition, he could not reconcile a longer silence either to his own sense of propriety or to the duty he owed to his constituents. He would not consent to go home without making one effort, however feeble or unsuccessful, to avert the calamity which threatened the Western country. Present appearances, he confessed, but little justified the hope that any thing he might propose would be adopted, yet it would at least afford him some consolation, hereafter, that he had done his duty, when the storm was approaching, by warning those who had power in their hands of the means which ought to be employed to resist it.

He was fully aware that the Executive of the United States had acted; that he had sent an Envoy Extraordinary to Europe. This was the peculiar province, and perhaps the duty of the President. He would not say that it was unwise in this state of our affairs to prepare for remonstrance and negotiation, much less was he then about to propose any measure that would thwart negotiation, or embarrass the President. On the other hand, he was convinced that more than negotiation was absolutely necessary, that more power and more means ought to be given to the President, in order to render his negotiations efficacious. Could the President proceed further, even if he thought more vigorous measures proper and expedient? Was it in his power to repel and punish the indignity put upon the nation? Could he use the public force to redress our wrongs? Certainly not. This must be the act of Congress. They are now to judge of ulterior measures; they must give the power, and vote the means to vindicate, in a becoming manner, the wounded honor and the best interests of the country.

Mr. R. said, he held in his hands certain resolutions for that purpose, and, before he offered them to the Senate, he would fully explain his reasons for bringing them forward and pressing them with earnestness, as the best system the United States could now pursue.

It was certainly unnecessary to waste the time of that body in stating that we had a solemn explicit treaty with Spain; that this treaty had been wantonly and unprovokedly violated, not only in what related to the Mississippi, but by the most flagrant, destructive spoliations of our commerce, on every part of the ocean, where Spanish armed vessels met the American flag. These spoliations were of immense magnitude, and demanded the most serious notice of our Government. They had been followed by an indignity and a direct infraction of our treaty relative to the Mississippi, which bore an aspect not to be dissembled or mistaken.

To the free navigation of that river we had an undoubted right from nature, and from the position of our Western country. This right, and the right of deposit in the island of New Orleans, had been solemnly acknowledged and fixed by treaty in 1795. That treaty had been in actual operation and execution for many years; and now, without any pretence of abuse or violation on our part, the officers of the Spanish Government deny the right, refuse the place of deposit, and add the most offensive of all insults, by forbidding us from landing on any part of their territory, and shutting us out as a common nuisance.

By whom has this outrage been offered? By those who have constantly acknowledged our right, and now tell us that they are no longer owners of the country! They have given it away, and, because they have no longer a right themselves, therefore, they turn us out, who have an undoubted right! Such an insult, such unprovoked malignity of conduct, no nation but this would affect to mistake. And yet we not only hesitate as to the course which interest and honor call us to pursue, but we bear it with patience, tameness, and apparent unconcern.

Sir, said Mr. R., whom does this infraction of the treaty and the natural rights of this country most intimately affect? If the wound inflicted on national honor be not sensibly felt by the whole nation, is there not a large portion of your citizens exposed to immediate ruin by a continuance of this state of things? The calamity lights upon all those who live upon the Western waters. More than half a million of your citizens are by this cut off from a market. What would be the language, what would be the feelings of gentlemen in this House, were such an indignity offered on the Atlantic coast? What would they say if the Chesapeake, the Delaware, or the Bay of New York were shut up, and all egress prohibited by a foreign power? And yet none of these waters embrace the interests of so many as the Mississippi. The numbers and the property affected by shutting this river, are greater than any thing that could follow by the blockade of a river on the Atlantic coast. Every part of the Union was equally entitled to protection, and no good reason could be offered why one part should be less attended to than another.

Fortunately for this country, there could be no doubt in the present case; our national right had been acknowledged, and solemnly secured by treaty. The treaty had been long in a state of execution. It was violated and denied without provocation or apology. The treaty then was no security. This evident right was one, the security of which ought not to be precarious: it was indispensable that the enjoyment of it should be placed beyond all doubt. He declared it therefore to be his firm and mature opinion, that so important a right would never be secure, while the mouth of the Mississippi was exclusively in the hands of the Spaniards. Caprice and enmity occasion constant interruption. From the very position of our country, from its geographical shape, from motives of complete independence, the command of the navigation of the river ought to be in our hands.

We are now wantonly provoked to take it. Hostility in its most offensive shape has been offered by those who disclaim all right to the soil and the sovereignty of that country—a hostility fatal to the happiness of the Western world. Why not seize then what is so essential to us as a nation? Why not expel the wrongdoers?—wrongdoers by their own confession, to whom by a seizure we are doing no injury. Paper contracts, or treaties, have proved too feeble. Plant yourselves on the river, fortify the banks, invite those who have an interest at stake to defend it: do justice to yourselves when your adversaries deny it; and leave the event to Him who controls the fate of nations.

Why submit to a tardy, uncertain negotiation, as the only means of regaining what you have lost: a negotiation with those who have wronged you; with those who declare they have no right, at the moment they deprive you of yours? When in possession, you will negotiate with more advantage. You will then be in the condition to keep others out. You will be in the actual exercise of jurisdiction over all your claims; your people will have the benefits of a lawful commerce. When your determination is known, you will make an easy and an honorable accommodation with any other claimant. The present possessors have no pretence to complain, for they have no right to the country by their own confession. The Western people will discover that you are making every effort they could desire for their protection. They will ardently support you in the contest, if a contest becomes necessary. Their all will be at stake, and neither their zeal nor their courage need be doubted.

Suppose that this course be not now pursued. Let me warn gentlemen how they trifle with the feelings, the hopes, and the fears of such a body of men, who inhabit the Western waters. Let every honorable man put the question to himself; how would half a million round him be affected by such a calamity, and no prompt measures taken by the Government to redress it? These men have arms in their hands; the same arms with which they proved victorious over their savage neighbors. They have a daring spirit; they have ample means of subsistence; and they have men disposed to lead them on to revenge their wrongs. Are you certain that they will wait the end of negotiation? When they hear that nothing has been done for their immediate relief, they will probably take their resolution and act. Indeed, from all we have heard, there is great reason to believe that they will, or that they may have already taken that resolution.

They know the nature of the obstruction, they know the weakness of the country; they are sure of present success, and they have a bold river to bear them forward to the place of action. They only want a leader to conduct them, and it would be strange, if with such means and such a spirit, a leader should not soon present himself.

Suppose they do go, and do chase away the present oppressors, and that in the end they are overpowered and defeated by a stronger foe than the present feeble possessors. They will never return to you, for you cannot protect them. They will make the best compromise they can with the power commanding the mouth of the river, who, in effect, has thereby the command of their fortunes. Will such a bargain be of light or trivial moment to the Atlantic States. Buonaparte will then say to you, my French West India colonies, and those of my allies, can be supplied from my colony of Louisiana, with flour, pork, beef, lumber, and any other necessary. These articles can be carried by my own ships, navigated by my own sailors. If you, on the Atlantic coast, wish to trade with my colonies in those articles, you must pay fifteen or twenty per cent, of an impost. We want no further supplies from you, and revenue to France must be the condition of all future intercourse. What will you say to this? It will be vain to address your Western brethren, and complain your commerce is ruined, your revenue dwindles, and your condition is desperate. They will reply that you came not to their assistance in the only moment you could have saved them; that you balanced between national honor and sordid interest, and suffered them to be borne down and subdued, at a time when for a trifle you could have secured the Mississippi; that now their interest must be consulted, and it forbade any assistance to you, when following in the same train of ruin which overwhelmed them. If the evil does not immediately proceed the full length of disunion, yet the strength, the unity of exertion, the union of interest will be gone. We are no longer one people, and representatives from that part of the country in our public councils, will partake of the spirit and breathe the sentiments of a distinct nation; they will rob you of your public lands; they will not submit to taxes; they will form a girdle round the Southern States, which may be denominated a foreign yoke, and render the situation of that country very precarious as to its peace and past connections. Indeed, every aspect of such a state of things is gloomy and alarming to men who take the trouble of reflecting upon it.

Where is the nation, ancient or modern, that has borne such treatment without resentment of resistance? Where is the nation that will respect another that is passive under such humiliating degradation and disgrace? Your outlet to market closed, next they will trample you under foot upon your own territory which borders upon theirs! Yet you will not stir, you will not arm a single man; you will negotiate! Negotiation alone, under such circumstances, must be hopeless. No. Go forward, remove the aggressors, clear away the obstructions, restore your possession with your own hand, and use your sword if resistance be offered. Call upon those who are most injured, to redress themselves; you have only to give the call, you have men enough near to the scene, without sending a man from this side the mountains; force sufficient, and more than sufficient, for a prompt execution of your orders. If money be an object, one half of the money which would be consumed and lost by delay and negotiation, would put you in possession; then you may negotiate whether you shall abandon it and go out again.

I say, also, let us go and redress ourselves; you will have the whole nation with you. On no question since the Declaration of Independence, has the nation been so unanimous as upon this. We have at different times suffered great indignity and outrages from different European Powers; but none so palpable, so inexcusable, so provoking, or of such magnitude in their consequences, as this. Upon none has public opinion united so generally as this. It is true we have a lamentable division of political opinion among us, which has produced much mischief, and may produce much greater than any we have yet felt. On this question, party spirit ought to sink and disappear. My opinions are well known, and are not likely to change; but I candidly, and with all possible sincerity, declare my conviction to be clear, that there will not be a dissenting voice in the Western country if this course be taken; that so far as my own abilities go, they shall be exerted to the utmost to support it; and I know that my friends on this floor with whom I have long thought and acted, have too high a regard for the national honor, and the best interests of their country, to hesitate a moment giving the same pledge of their honest determination to support and render these measures effectual, if taken: call them ours, if you please, we take the responsibility, and leave the execution of them with you. For, as to myself or my friends, no agency is wished, except that of uniting with you in rousing the spirit, and calling out the resources of the country, to protect itself against serious aggression, and the total subjection and loss of the Western country.

Mr. R. then read his resolutions, which are as follows:

"Resolved, That the United States have an indisputable right to the free navigation of the river Mississippi, and to a convenient place of deposit for their produce and merchandise in the island of New Orleans.

"That the late infraction of such their unquestionable right, is an aggression hostile to their honor and interest.

"That it does not consist with the dignity or safety of this Union to hold a right so important by a tenure so uncertain.

"That it materially concerns such of the American citizens as dwell on the Western waters, and is essential to the union, strength, and prosperity of these States, that they obtain complete security for the full and peaceable enjoyment of such their absolute right.

"That the President be authorized to take immediate possession of such place or places, in the said island, or the adjacent territories, as he may deem fit and convenient for the purposes aforesaid; and to adopt such other measures for obtaining that complete security as to him in his wisdom shall seem meet.

"That he be authorized to call into actual service any number of the militia of the States of South Carolina, Georgia, Ohio, Kentucky, Tennessee, or of the Mississippi Territory, which he may think proper, not exceeding fifty thousand, and to employ them, together with the military and naval forces of the Union, for effecting the objects above mentioned.

"That the sum of five millions of dollars be appropriated to the carrying into effect the foregoing resolutions, and that the whole or any part of that sum be paid or applied, on warrants drawn in pursuance of such directions as the President may, from time to time, think proper to give to the Secretary of the Treasury."[69]

Monday, February 21.

The Vice President communicated the credentials of Theodorus Bailey, appointed a Senator by the State of New York, to take his seat after the third day of March next; which were read, and ordered to lie on file.

Tuesday, February 22.

Purchase of Louisiana.

In Executive session, the bill, entitled "An act making further provision for the expenses attending the intercourse between the United States and foreign nations," was read the third time.

On the question, Shall this bill pass? it was determined in the affirmative—yeas 14, nays 12, as follows:

Yeas.—Messrs. Anderson, Baldwin, Bradley, Breckenridge, Clinton, Cocke, Ellery, T. Foster, Jackson, Logan, S. T. Mason, Nicholas, Sumter, and Wright.

Nays.—Messrs. Dayton, D. Foster, Hillhouse, Howard, J. Mason, Morris, Olcott, Plumer, Ross, Stone, Wells and White.

So it was Resolved, That this bill pass.[70]

Wednesday, February 23.

Mississippi Question.

Mr. White, of Delaware, rose and addressed the Chair as follows: Mr. President, on this subject, which has on a former day been discussed with so much ability, and with so much eloquence, by my friend from Pennsylvania, the honorable mover of the resolutions, I shall submit the few observations that I may make, in as concise a manner as I am capable of; for it is very far from my wish to occupy the time or attention of the Senate unnecessarily. The resolutions on your table I approve of in their full extent; I believe they express the firm and manly tone that at this moment is especially becoming the dignity of the Government to assume; I believe they mark out a system of measures, which, if promptly pursued, will be honorable to the nation, and equal to the accomplishment of the important object which gentlemen on all sides seem to have in view. These alone, with me, would be sufficient inducements to yield them my feeble support; but in addition to these, and to the thorough conviction of my own mind as to the course I ought to pursue, I have the happiness of being supported in my opinions on this subject by the unequivocal expression of the sentiment of the State to which I have the honor to belong.

It was early seen, Mr. President, and required but little penetration to discover, that adventurers emigrating beyond the mountains, and settling on the Western waters, must possess the free navigation of the Mississippi, it being their only outlet to the ocean. This important privilege it became necessary on the part of the Government of the United States to secure by treaty, and not leave to the capricious will of whatever nation who might in future hold the territory at the mouth of the river. Accordingly, in the 4th and 23d articles of our Treaty with Spain, I find on this subject the following stipulation:

"Art. 4. It is likewise agreed that the western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel or bed of the river Mississippi, from the northern boundary of the said States to the completion of the 31st degree of latitude north of the equator. And His Catholic Majesty has likewise agreed that the navigation of the said river, in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention."

"Art. 22. The two high contracting parties, hoping that the good correspondence and friendship which happily reigns between them will be further increased by this treaty, and that it will contribute to augment their prosperity and opulence, will in future give to their mutual commerce all the extension and favor which the advantages of both countries may require.

"And in consequence of the stipulations contained in the 4th article, His Majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores; and His Majesty promises either to continue this permission, if he finds, during that time, that it is not prejudicial to the interests of Spain, or if he should not agree to continue it there, he will assign to them, on another part of the banks of the Mississippi, an equivalent establishment."

This instrument, Mr. President, it is known, for a time, quieted the fears and jealousies of our Western brethren; they supposed it had removed for ever the possibility of any future embarrassment to their commerce on those waters. And after it had been proclaimed as the law of the land—after it had been ratified by both nations, and become obligatory upon the faith and honor of each, who could have thought otherwise? Yet, sir, it has happened otherwise. This place of deposit at New Orleans, secured to our citizens by the article last read, has been recently wrested from their hands by the authority of the Spanish Government, and no other equivalent one assigned, where, after more than two thousand miles of boat navigation, they may disembark their produce in order to be shipped for sea; and without this advantage the navigation of the river is to them but an empty name.

I have said, by the authority of the Spanish Government, it has indeed been given out to the world, for reasons that every man may conjecture, and are unnecessary to be mentioned, that this was not the act of the Government, but the rash measure of a single officer—the Intendant General of the Spanish provinces; that the Spanish Minister had issued orders for the speedy adjustment of these difficulties; had kindly offered to throw himself into the breach to prevent this Intendant General from going to extremities with the Government of the United States. Sir, gentlemen may find, when too late, that this is a mere piece of diplomatic policy, intended only to amuse them; and to say nothing of the humiliating idea of resorting to such a plaster for the wound that has been inflicted upon our national honor, if they had taken the trouble, they might have been informed that the Spanish Minister near this Government has no control at New Orleans; that the Intendant General is, like himself, an immediate officer of the Crown, and responsible only to the Crown for his conduct. If the Spanish Minister has interfered, which I am not disposed to question, to make the best of it, it could only have been by the entreaties of men in power, as a mere mediator, to beg of the Intendant General of New Orleans justice and peace on behalf of the people of the United States. Are honorable gentlemen prepared to accept peace on such terms? They might do, sir, for a tribe of starving Indians; but is this the rank that we are to hold among the nations of the world? And it seems that even these supplicating advances are likely to avail us nothing. By accounts very lately received from New Orleans, by a private letter which I have seen since these resolutions were submitted to the Senate, the Intendant General has expressed much displeasure at the interference of the Spanish Minister, stating that it was not within his duty or his province, and that he, the Intendant, acted not under Spanish but French orders.

As to the closing of the port of New Orleans against our citizens, the man who can now doubt, after viewing all the accompanying circumstances, that it was the deliberate act of the Spanish or French Government, must have locked up his mind against truth and conviction, and be determined to discredit even the evidence of his own senses. But, sir, it is not only the depriving us of our right of deposit by which we have been aggrieved, it is by a system of measures pursued antecedent and subsequent to that event, equally hostile and even more insulting. I have in my hand a paper, signed by a Spanish officer, which, with the indulgence of the Chair, I will read to the Senate:

Advertisement.—Under date of the 16th instant, (December,) the Intendant General of these provinces tells me that the citizens of the United States of America can have no commerce with His Majesty's subjects—they only having the free navigation of the river for the exportation of the fruits and produce of their establishments to foreign countries, and the importation of what they may want from them. As such I charge you, so far as respects you, to be zealous and vigilant, with particular care, that the inhabitants neither purchase nor sell any thing to the shipping, flat-bottomed boats, barges, or any other smaller vessels that may go along the river, destined for the American possessions, or proceeding from them, that they shall be informed of it, for their due compliance of the same.

CARLOS DE GRANDPRE.

Baton Rouge, Dec. 22, 1802.

These are the measures, Mr. President, that have been adopted; these are the orders that have been issued by the Intendant General to every district of the Spanish provinces, prohibiting the subjects of His Catholic Majesty from having any commerce, dealing, intercourse, or communion whatsoever with the citizens of the United States; excluding us from their shores for the distance of two hundred and seventy miles; treating us like a nation of pirates, or a banditti of robbers, who they feared to trust in their country. And this day, sir, if a vessel belonging to a citizen of the United States, engaged in a fair and legal trade, was upon the waters of the Mississippi, within the Spanish lines, and in a state of the most extreme distress, the Spaniard who should yield her aid or comfort would do it at the peril of his life.

If it should be said, sir, that this important question will not long be an affair of controversy between the United States and Spain; that Louisiana, New Orleans, and this usurped claim of the Spanish Government to the exclusive navigation of the Mississippi, will soon be found in other hands; that whenever we may have to negotiate on this subject, either in the cabinet or the field, it will not be with His Catholic Majesty, but with the First Consul; not with a King, but with the King of Kings—I answer that in these insults to our national dignity, we at present know no power but Spain. Whatever agency Buonaparte may have had in this business, he has been concealed from our view. It is Spain that has violated her plighted faith; it is Spain that has trampled upon the dearest interests of the United States, and insulted our Government to our faces without the semblance of a cause, and she alone is responsible to us for these outrages. And, under such circumstances, is it becoming, politic, or honorable in us to treat her as a friend and as a neighbor; to remonstrate with her on her acts of injustice, and wait till she shall add insult to insult, and heap injury upon injury; or what is perhaps even worse, if any thing worse than national degradation can befall an independent people, till this golden opportunity shall have passed away, and the facility of redress be wrested from our hands? No, sir, we should now view her as our open enemy, as having declared war against us, and do justice to ourselves. We can never have permanent peace on our Western waters, till we possess ourselves of New Orleans, and such other positions as may be necessary to give us the complete and absolute command of the navigation of the Mississippi. We have now such an opportunity of accomplishing this important object as may not be presented again in centuries, and every justification that could be wished for availing ourselves of the opportunity. Spain has dared us to the trial, and now bids us defiance; she is yet in possession of that country: it is at this moment within your reach and within your power; it offers a sure and easy conquest; we should have to encounter there now only a weak, inactive, and unenterprising people; but how may a few months vary this scene, and darken our prospects! Though not officially informed we know that the Spanish provinces on the Mississippi have been ceded to the French, and that they will as soon as possible take possession of them. What may we then expect? When in the last extremity we shall be driven to arms in defence of our indisputable rights, where now slumbers on his post with folded arms the sluggish Spaniard, we shall be hailed by the vigilant and alert French grenadier, and in the defenceless garrison that would now surrender at our approach, we shall see unfurled the standards that have waved triumphant in Italy, surrounded by impregnable ramparts, and defended by the disciplined veterans of Egypt.

But, Mr. President, what is more than all to be dreaded, in such hands, it may be made the means of access and corruption to your national councils and a key to your Treasury. Your Western people will see in Buonaparte, at their very doors, a powerful friend or a dangerous enemy; and should he, after obtaining complete control over the navigation of the Mississippi, approach them, not in the menacing attitude of an enemy, but under the specious garb of a protector and a friend; should he, instead of embarrassing their commerce by any fiscal arrangements, invite them to the free navigation of the river, and give them privileges in trade not heretofore enjoyed; should he, instead of attempting to coerce them to his measures, contrary to their wishes, send missionaries into their country to court and intrigue with them, he may seduce their affections, and thus accomplish by address and cunning, what even his force might not be equal to. In this way, having operated upon their passions, having enlisted in his service their hopes and their fears, he may gain an undue ascendency over them. Should these things be effected, which God forbid—but Buonaparte in a few years has done much more—what, let me ask honorable gentlemen, will be the consequences? I fear even to look them in the face. The degraded countries of Europe, that have been enslaved by the divisions and distractions of their councils, produced by similar means, afford us melancholy examples. Foreign influence will gain admittance to your national councils; the First Consul, or his interests, will be represented in the Congress of the United States; this floor may become the theatre of sedition and intrigue. You will have a French faction in the Government, and that faction will increase, with the rapidly increasing population of the Western world. Whenever this period shall arrive, it will be the crisis of American glory, and must result, either in the political subjugation of the Atlantic States, or in their separation from the Western country; and I am sure there is no American who does not view as one of the greatest evils that could befall us, the dismemberment of this Union. Honorable gentlemen may wrap themselves up in their present imaginary security, and say that these things are afar off, or that they can never happen; but let me beseech of them to look well to the measures they are now pursuing, for, on the wisdom, the promptness, and energy of those measures, will depend whether they shall happen or not. And let me tell them, sir, that the want of firmness or judgment in the cabinet, will be no apology for the disgrace and ruin of the nation.

Mr. Breckenridge observed, that he did not mean to wander in the field of declamation, nor, after the example of the honorable gentleman who had preceded him, endeavor to alarm or agitate the public mind; that he should endeavor to strip the subject of all improper coloring, and examine dispassionately the propriety of the measures which the Senate were called upon to sanction. He would be very brief.

What is the true and undisguised state of facts? Early in the session, the House of Representatives were informed, by a communication from the President, of the conduct of the Intendant at New Orleans. This communication stated, that he had taken measures to attempt a restoration of the right which had been violated; and that there were reasons to believe that the conduct of the Intendant was unauthorized by the Court of Spain. Accompanying this message were official papers, in which it appeared that the Governor of New Orleans had strongly opposed the conduct of the Intendant, declared that he was acting without authority in refusing the deposit, and indicated a disposition to oppose openly the proceeding. The Spanish Minister who resides here, also interposed on the occasion, and who stands deservedly high in the confidence of his Government, was clearly of opinion, that the Intendant was acting without authority, and that redress would be given so soon as the competent authority could interpose. From this state of things, and which is the actual state at this moment, what is the course any civilized nation who respects her character or rights, would pursue? There is but one course, which is admitted by writers on the laws of nations, as the proper one; and is thus described by Vattel, in his book, sec. 336, 338:

"A sovereign ought to show, in all his quarrels, a sincere desire of rendering justice and preserving peace. He is obliged before he takes up arms, and after having taken them up also, to offer equitable conditions, and then alone his arms become just against an obstinate enemy, who refuses to listen to justice or to equity. His own advantage, and that of human society, oblige him to attempt, before he takes up arms, all the pacific methods of obtaining either the reparation of the injury, or a just satisfaction. This moderation, this circumspection, is so much the more proper, and commonly even indispensable, as the action we take for an injury does not always proceed from a design to offend us, and is sometimes a mistake rather than an act of malice: frequently it even happens, that the injury is done by inferior persons, without their sovereign having any share in it; and on these occasions, it is not natural to presume that he would refuse us a just satisfaction."

This is the course which the President has taken, and in which the House of Representatives have expressed, by their resolution, their confidence.

What are the reasons urged by the gentlemen to induce a different proceeding, an immediate appeal to arms? You prostrate, say the gentlemen, your national honor by negotiating, where there is a direct violation of a treaty! How happens it that our national honor has, at this particular crisis, become so delicate, and that the feelings of certain gentlemen are now so alive to it? Has it been the practice of this Government heretofore to break lances on the spot with any nation who injured or insulted her? Or has not the invariable course been to seek reparation in the first place by negotiation? I ask for an example to the contrary; even under the Administration of Washington, so much eulogized by the gentleman last up. Were not the Detroit, and several other forts within our territory, held ten or a dozen years by Great Britain, in direct violation of a treaty? Were not wanton spoliations committed on your commerce by Great Britain, by France, and by Spain, to the amount of very many millions; and all adjusted through the medium of negotiations? Were not your merchants plundered, and your citizens doomed to slavery by Algiers, and still those in power, even Washington himself, submitted to negotiation, to ransom, and to tribute? Why then do gentlemen, who on those occasions approved of these measures, now despair of negotiation? America has been uniformly successful, at least in settling her differences by treaty.

But the gentleman is afraid that if we do not immediately seize the country, we shall lose the golden opportunity of doing it. Would your national honor be free from imputation by a conduct of such inconsistency and duplicity? A minister is sent to the offending nation with an olive-branch, for the purpose of an amicable discussion and settlement of differences, and before he has scarcely turned his back, we invade the territories of that nation with an army of fifty thousand men! Would such conduct comport with the genius and principles of our Republic, whose true interest is peace, and who has hitherto professed to cultivate it with all nations? Would not such a procedure subject us to the just censure of the world, and to the strongest jealousy of those who have possessions near to us? Would such a procedure meet the approbation of even our own citizens, whose lives and fortunes would be risked in the conflict? And would it not be policy inexcusably rash, to plunge this country into war, to effect that which the President not only thinks can be effected, but is now actually in a train of negotiation? If, on the other hand, negotiation should fail, how different will be the ground on which we stand! We stand acquitted by the world, and what is of more consequence, by our own citizens, and our own consciences. But one sentiment will then animate and pervade the whole, and from thenceforth we will take counsel only from our courage.

But to induce us to depart from this proper, this safe, and honorable course of proceeding, which is pursuing by the President, the gentleman from Pennsylvania first, and the gentleman from Delaware again told you, that by such pacific measures you will irritate the Western people against you; that they will not be restrained by you, but will either invade the country themselves, or withdraw from the Union and unite with those who will give them what they want. Sir, said Mr. B., I did not expect to hear such language held on this floor. Sir, the gentleman from Pennsylvania best knows the temper and views of the Western people he represents, but if he meant to extend the imputation to the State I have the honor to represent, I utterly disclaim it. The citizens of Kentucky value too highly their rights and character to endanger the one or dishonor the other. They deal not, sir, in insurrections. They hold in too sacred regard their federal compact to sport with it. They were among the first to oppose violations of it, and will, I trust, be the last to attempt its dissolution. The time indeed was, when not only irritation but disgust prevailed in that country; when, instead of sending fifty thousand men to seize on Orleans, an attempt was meditated, and a solemn vote taken in Congress to barter away this right for twenty-five years. The time indeed was, when great dissatisfaction prevailed in that country, as to the measures of the General Government; but it never furnished there, whatever it might have done elsewhere, even the germs for treasons or insurrections. The people I have the honor to represent are not accustomed to procure redress in this way. Instead of trampling on the constitution of their country, they rally round it as the rock of their safety. But, unhappily, these times have passed away. Distrust and dissatisfaction have given place to confidence in, and attachment to those in whom the concerns of the nation are confided. I ask no reliance on my opinion for this fact, but appeal to the memorial of the Legislature of Kentucky to the present Congress, for the truth of this assertion. In this disposition of mind, therefore, and from the sound sense and correct views and discernment of their true interest, which the people of Kentucky possess, I have no hesitation in pledging myself, that no such precipitate and unwarranted measures will be taken by them, as predicted by the gentlemen in the opposition.

But he begged leave to ask gentlemen who hold such language, would the Western people, admitting they were to withdraw from the Union, be able to accomplish the object? Could they alone go to war with France and Spain? Could they hold Orleans, were they to take possession of it, without the aid of the United States? Admitting they could hold it, what security would they have for their commerce? A single ship of the line would be able completely to blockade that port. See, also, the Havana, one of the safest and strongest of the Spanish ports, and so situated as to possess every advantage in annoying our commerce. Are the gentlemen, therefore, really serious when they endeavor to persuade us that the Western people are in such a state of fury and mad impatience that they will not wait even a few months to see the fate of a negotiation, and, if unsuccessful, receive the aid of the whole nation, but that they will madly run to the attack without a ship, without a single cannon, without magazines, without money or preparation of any kind; and, what is worse, without union among themselves; and what is still worse, in face of the laws and constitution of their country? It is impossible. Such a desperate project could not come to a successful issue; for should they even obtain the right by their own exertions alone, they could not expect long to enjoy it in peace, without descending from that exalted, that enviable rank of one of the independent States of United America, to the degraded, dependent condition of a colonial department of a foreign nation.

Although he thought it incumbent on us, for the reasons he had stated, to try the effect of negotiation, yet, should that fail, he thought it incumbent on us also to be prepared for another resort. He considered this right, and upon a different footing from what we ever enjoyed it, so all-important, so indispensable to the very existence of the Western States, that it was a waste of words and time to attempt to portray the evils which a privation of it would produce; and he rejoiced to find that gentlemen with whom he had not been in the habit of voting on most political subjects so perfectly accord with him, that our precarious tenure of it must be changed. He hoped they were sincere in their declarations. If they were, the only difference between us now is, what are the proper means to obtain this great end? The course pursued by the President was, in his opinion, the only true and dignified course. It is that, and that only, which will certainly attain the object; and is the only one which will tend to unite cordially all parts of the Union. But we ought to be prepared, in case of a failure, instantly to redress ourselves. This, instead of having an evil, would, in his opinion, have a good effect on the negotiation. It would show, that although we are willing amicably to adjust our differences, yet that we are not only resolved on, but prepared for that resort which cannot fail to restore our violated rights. With that view, he would offer the following resolutions, as substitutes for those proposed by the gentleman from Pennsylvania.

He moved that the whole of the resolutions be struck out, excepting the word "Resolved," and the following be substituted in their place—after the word "Resolved:"

"That the President of the United States be, and he is hereby authorized, whenever he shall judge it expedient, to require of the Executives of the several States to take effectual measures to organize, arm, and equip, according to law, and hold in readiness to march at a moment's warning, eighty thousand effective militia, officers included.

Resolved, "That the President may, if he judges it expedient, authorize the Executives of the several States, to accept, as part of the detachment aforesaid, any corps of volunteers; who shall continue in service for such time, not exceeding —— months, and perform such services as shall be prescribed by law.

Resolved, "That —— dollars be appropriated for paying and subsisting such part of the troops aforesaid, whose actual service may be wanted, and for defraying such other expenses as, during the recess of Congress, the President may deem necessary for the security of the territory of the United States.

Resolved, "That —— dollars be appropriated for erecting at such place or places on the Western waters, as the President may judge most proper, one or more arsenals."

Mr. Clinton.—The importance of a free navigation of the Mississippi has been duly appreciated by the Government, and a constant eye has been kept upon it in our negotiations with foreign powers. An attempt was, indeed, made under the Old Confederation to barter it away for twenty-five years, which, however, was effectually controlled by the good sense and patriotism of the Government. By the Treaty of Peace with Great Britain in 1783, by the Treaty of Amity, Commerce, and Navigation with her in 1794, and by the Treaty of Friendship, Limits, and Navigation with Spain, in 1795, the right of a free navigation of the Mississippi is recognized, and declared to exist from its source to the ocean, in the citizens of the United States. By the 22d article of the Treaty with Spain, it is declared that, "in consequence of the stipulations contained in the 4th article, his Catholic Majesty will permit the citizens of the United States, for the space of three years from this time, to deposit their merchandise and effects in the port of New Orleans, and to export them from thence without paying any other duty than a fair price for the hire of the stores. And his Majesty promises either to continue this permission if he finds during that time that it is not prejudicial to the interests of Spain; or, if he should not agree to continue it there, he will assign to them, on another part of the lands of the Mississippi, an equivalent establishment." The 22d article, granting the right of deposit, is, therefore, founded upon the 4th article recognizing the right of free navigation, and is intended to give full and complete efficacy to it. By a proclamation of the Intendant of the Province of Louisiana, dated the 16th of October last, the right of deposit is prohibited. The reason assigned for this daring interdiction is, that the three years for which it was granted having expired, it cannot be continued without an express order from the King of Spain; and at the same time no equivalent establishment is assigned, according to the stipulations of the Treaty.

There can be no doubt but that the suspension of the right of deposit at New Orleans, and the assignment of another place equally convenient, ought to have been contemporaneous and concurrent; that the conduct of the Intendant is an atrocious infraction of the treaty, and that it aims a deadly blow at the prosperity of the Western States; but it is extremely questionable whether it was authorized by the Government of Spain or not. On this subject I am free to declare that I entertain great doubts, which can only be cleared up by the course of events, or perhaps it will be enveloped in darkness. On the one hand, the terms of the proclamation, indicating a misunderstanding of the treaty, the remonstrances of the Governor of the Province, whose authority does not extend to commercial and fiscal affairs, over which the Intendant has an exclusive control, and the prompt and decided assurances of the Spanish Minister near the United States, would induce a belief that the act of the Intendant was unauthorized. On the other hand, it cannot readily be believed that this officer would assume such an immense responsibility, and encounter an event so big with important consequences, not only to his country but to himself, without knowing explicitly the intentions of his Government. Such, then, is the true state of the Spanish aggression: an important right had been secured to our citizens by the solemnity of a treaty. This right had been withdrawn by an officer of the Spanish Government, and whether this aggression was directed by it or not, is not as yet known. Other aggressions have, indeed, been stated by the honorable gentleman from Pennsylvania, (Mr. Ross,) in order to darken the picture, and with the manifest design of exasperating our feelings, inflaming our passions, and prompting an immediate appeal to the sword.

As to the nature, character, and tendency of the remedy proposed, there can be but one opinion. It proposes to enter the country of a foreign nation with a hostile force, and to seize a part of its territory. It is not preceded by a formal declaration, and cannot, therefore, come under the denomination of a solemn war, but it partakes of the character of a war not solemn. It answers to the definition of war, by Burlamaqui, "a nation taking up arms with a view to decide a quarrel;" to that given by Vattel, who represents it to be "that state in which a nation prosecutes its right by force." A state of general hostilities would as necessarily follow as an effect would follow a cause; no nation would submit to the irruption of a hostile army without repelling it by force; the proud Castilian, as described by the gentleman from Delaware, would revolt at the insult; the door of negotiation would be effectually closed, and as the appeal would be to arms in the first instance, so the controversy must be finally decided by the preponderance of force. It would, therefore, not only have impressed me with a more favorable opinion of the honorable mover's candor, but also of his decision and energy as a statesman, if he had spoken out boldly, and declared his real object. War is unquestionably his design—his wish. Why, then, mask his proposition? Why combine it with considerations connected with negotiation? Why not furnish the American people at once with the real and the whole project of himself and his friends? If it is bottomed on patriotism and dictated by wisdom, it need not shrink from the touch of investigation—it will receive their approving voice, and be supported by all their force. The resolution is then to be considered as a war resolution; in no other light can it be viewed; in no other light ought it to be viewed; and in no other light will it be viewed by the intelligence of the country. In this point of view, I will proceed, said Mr. C., to consider its justice and policy; its conformity with the laws and usage of nations, and the substantial interests of this country.

I shall not attempt to occupy your attention by threadbare declamation upon the evils of war, by painting the calamities it inflicts upon the happiness of individuals, and the prosperity of nations. This terrible scourge of mankind, worse than the famine or pestilence, ought not to be resorted to until every reasonable expedient has been adopted to avert it. When aggressions have been committed by the sovereign or representatives of a nation, negotiation ought in all cases to be first tried, unless the rights of self-defence demand a contrary course. This is the practice of nations, and is enjoined by the unerring monitor which the God of Nature has planted in every human bosom. What right have the rulers of nations to unsheath the sword of destruction, and to let loose the demon of desolation upon mankind, whenever caprice or pride, ambition or avarice, shall prescribe? And are there no fixed laws founded in the nature of things which ordain bounds to the fell spirit of revenge, the mad fury of domination, and the insatiable thirst of cupidity? Mankind have not only in their individual character, but in their collective capacity as nations, recognized and avowed in their opinions and actions, a system of laws calculated to produce the greatest happiness of the greatest number. And it may be safely asserted, that it is a fundamental article of this code, that a nation ought not to go to war, until it is evident that the injury committed is highly detrimental, and that it emanated from the will of the nation charged with the aggression, either by an express authorization in the first instance, or by a recognition of it when called upon for redress, and a refusal in both cases to give it. A demand of satisfaction ought to precede an appeal to arms, even when the injury is manifestly the act of the Sovereign; and when it is the act of a private individual, it is not imputable to his nation, until his Government is called upon to explain and redress, and refuses; because the evils of war are too heavy and serious to be incurred, without the most urgent necessity; because remonstrance and negotiation have often recalled an offending nation to a sense of justice, and a performance of right; because nations, like individuals, have their paroxysms of passion, and when reflection and reason resume their dominion, will extend that redress to the olive-branch, which their pride will not permit them to grant to the sword; because a nation is a moral person, and, as such, is not chargeable with an offence committed by others, or where its will has not been consulted, the unauthorized conduct of individuals being never considered a just ground of hostility, until their sovereign refuses that reparation for which his right of controlling their actions, and of punishing their misconduct, necessarily renders him responsible. These opinions are sanctioned by the most approved elementary writers on the laws of nations.