SIXTH CONGRESS.—FIRST SESSION. (continued 3)

It is most certain, then, that the act of Congress does not comprehend the case of a murder committed on board a foreign ship-of-war.

The gentleman from New York has cited 2 Woodeson, 428, to show that the courts of England extend their jurisdiction to piracies committed by the subjects of foreign nations.

This has not been doubted. The case from Woodeson is a case of robberies committed on the high seas by a vessel without authority. There are ordinary acts of piracy which, as has been already stated, being offences against all nations, are punishable by all. The case from 2 Woodeson, and the note cited from the same book by the gentleman from Delaware, are strong authorities against the doctrines contended for by the friends of the resolutions.

It has also been contended that the question of jurisdiction was decided at Trenton, by receiving indictments against persons there arraigned for the same offence, and by retaining them for trial after the return of the habeas corpus.

Every person in the slightest degree acquainted with judicial proceedings, knows that an indictment is no evidence of jurisdiction; and that, in criminal cases, the question of jurisdiction will seldom be made but by arrest of judgment after conviction.

The proceedings, after the return of the habeas corpus, only prove that the case was not such a case as to induce the Judge immediately to decide against his jurisdiction. The question was not free from doubt, and, therefore, might very properly be postponed until its decision should become necessary.

It has been argued by the gentleman from New York, that the form of the indictment is, itself, evidence of a power in the court to try the case. Every word of that indictment, said the gentleman, gives the lie to a denial of the jurisdiction of the court.

It would be assuming a very extraordinary principle, indeed, to say that words inserted in an indictment for the express purpose of assuming the jurisdiction of a court, should be admitted to prove that jurisdiction. The question certainly depended on the nature of the fact, and not on the description of the fact. But as an indictment must necessarily contain formal words in order to be supported, and as forms often denote what a case must substantially be to authorize a court to take cognizance of it, some words in the indictments at Trenton ought to be noticed. The indictments charge the persons to have been within the peace, and murder to have been committed against the peace, of the United States. These are necessary averments, and, to give the court jurisdiction, the fact ought to have accorded with them. But who will say that the crew of a British frigate on the high seas, are within the peace of the United States? or a murder committed on board such a frigate, against the peace of any other than the British Government?

It is, then, demonstrated that the murder with which Thomas Nash was charged, was not committed within the jurisdiction of the United States, and, consequently, that the case stated was completely within the letter and the spirit of the twenty-seventh article of the treaty between the two nations. If the necessary evidence was produced, he ought to have been delivered up to justice. It was an act to which the American nation was bound by a most solemn compact. To have tried him for the murder would have been mere mockery. To have condemned and executed him, the court having no jurisdiction, would have been murder. To have acquitted and discharged him would have been a breach of faith, and a violation of national duty.

But it has been contended that, although Thomas Nash ought to have been delivered up to the British Minister, on the requisition made by him in the name of his Government, yet, the interference of the President was improper.

This, Mr. M. said, led to his second proposition, which was:

That the case was a case for Executive and not Judicial decision. He admitted implicitly the division of powers, stated by the gentleman from New York, and that it was the duty of each department to resist the encroachments of the others.

This being established, the inquiry was, to what department was the power in question allotted?

The gentleman from New York had relied on the second section of the third article of the constitution, which enumerates the cases to which the Judicial power of the United States extends, as expressly including that now under consideration. Before he examined that section, it would not be improper to notice a very material misstatement of it made in the resolutions, offered by the gentleman from New York. By the constitution, the Judicial power of the United States is extended to all cases in law and equity, arising under the constitution, laws, and treaties of the United States; but the resolutions declare that Judicial power to extend to all questions arising under the constitution, treaties, and laws of the United States. The difference between the constitution and resolutions was material and apparent. A case in law or equity was a term well understood, and of limited signification. It was a controversy between parties which had taken a shape for judicial decision. If the Judicial power extended to every question under the constitution, it would involve almost every subject proper for Legislative discussion and decision; if, to every question under the laws and treaties of the United States, it would involve almost every subject on which the Executive could act. The division of power which the gentleman had stated, could exist no longer, and the other departments would be swallowed up by the Judiciary. But it was apparent that the resolutions had essentially misrepresented the constitution. He did not charge the gentleman from New York with intentional misrepresentation; he would not attribute to him such an artifice in any case, much less in a case where detection was so easy and so certain. Yet this substantial departure from the constitution, in resolutions affecting substantially to unite it, was not less worthy of remark for being unintentional. It manifested the course of reasoning by which the gentleman had himself been misled, and his judgment betrayed into the opinions those resolutions expressed. By extending the Judicial power to all cases in law and equity, the constitution had never been understood to confer on that department any political power whatever. To come within this description, a question must assume a legal form for forensic litigation and judicial decision. There must be parties to come into court, who can be reached by its process, and bound by its power; whose rights admit of ultimate decision by a tribunal to which they are bound to submit.

A case in law or equity proper for judicial decision may arise under a treaty, where the rights of individuals acquired or secured by a treaty are to be asserted or defended in court. As under the fourth or sixth article of the treaty of peace with Great Britain, or under those articles of our late treaties with France, Prussia, and other nations, which secure to the subjects of those nations their property within the United States; or, as would be an article, which, instead of stipulating to deliver up an offender, should stipulate his punishment, provided the case was punishable by the laws and in the courts of the United States. But the Judicial power cannot extend to political compacts; as the establishment of the boundary line between the American and British dominions; the case of the late guarantee in our treaty with France, or the case of the delivery of a murderer under the twenty-seventh article of our present treaty with Britain.

The gentleman from New York has asked, triumphantly asked, what power exists in our courts to deliver up an individual to a foreign Government? Permit me, said Mr. M., but not triumphantly, to retort the question. By what authority can any court render such a judgment? What power does a court possess to seize any individual and determine that he shall be adjudged by a foreign tribunal? Surely our courts possess no such power, yet they must possess it, if this article of the treaty is to be executed by the courts.

Gentlemen have cited and relied on that clause in the constitution, which enables Congress to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; together with an act of Congress declaring the punishment of those offences; as transferring the whole subject to the courts. But that clause can never be construed to make to the Government a grant of power, which the people making it do not themselves possess. It has already been shown that the people of the United States have no jurisdiction over offences committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government. The law, therefore, cannot act upon the case. But this clause of the constitution cannot be considered, and need not be considered, as affecting acts which are piracy under the law of nations. As the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction, and piracy under the law of nations is of admiralty and maritime jurisdiction, punishable by every nation, the judicial power of the United States of course extends to it. On this principle the Courts of Admiralty under the Confederation took cognizance of piracy, although there was no express power in Congress to define and punish the offence.

But the extension of the judicial power of the United States to all cases of admiralty and maritime jurisdiction must necessarily be understood with some limitation. All cases of admiralty and maritime jurisdiction which, from their nature, are triable in the United States, are submitted to the jurisdiction of the courts of the United States.

There are cases of piracy by the law of nations, and cases within the legislative jurisdiction of the nation; the people of America possessed no other power over the subject, and could consequently transfer no other to their courts; and it has already been proved that a murder committed on board a foreign ship-of-war is not comprehended within this description.

The Consular Convention with France, has also been relied on, as proving the act of delivering up an individual to a foreign power to be in its nature Judicial and not Executive.

The ninth article of that Convention authorizes the Consuls and Vice Consuls of either nation to cause to be arrested all deserters from their vessel, "for which purpose the said Consuls and Vice Consuls shall address themselves to the courts, judges, and officers competent."

This article of the Convention does not, like the 27th article of the treaty with Britain, stipulate a national act, to be performed on the demand of a nation; it only authorizes a foreign Minister to cause an act to be done, and prescribes the course he is to pursue. The contract itself is, that the act shall be performed by the agency of the foreign Consul, through the medium of the courts; but this affords no evidence that a contract of a very different nature is to be performed in the same manner.

It is said that the then President of the United States declared the incompetency of the courts, judges, and officers, to execute this contract without an act of the Legislature. But the then President made no such declaration.

He has said that some legislative provision is requisite to carry the stipulations of the Convention into full effect. This, however, is by no means declaring the incompetency of a department to perform an act stipulated by treaty, until the legislative authority shall direct its performance.

It has been contended that the conduct of the Executive on former occasions, similar to this in principle, has been such as to evince an opinion, even in that department, that the case in question is proper for the decision of the courts.

The fact adduced to support this argument is the determination of the late President on the case of prizes made within the jurisdiction of the United States, or by privateers fitted out in their ports.

The nation was bound to deliver up those prizes in like manner as the nation is now bound to deliver up an individual demanded under the 27th article of the treaty with Britain. The duty was the same, and devolved on the same department.

In quoting the decision of the Executive on that case, the gentleman from New York has taken occasion to bestow a high encomium on the late President; and to consider his conduct as furnishing an example worthy the imitation of his successor. It must be the cause of much delight to the real friends of that great man; to those who supported his Administration while in office from a conviction of its wisdom and its virtue, to hear the unqualified praise which is now bestowed on it by those who had been supposed to possess different opinions. If the measure now under consideration shall be found, on examination, to be the same in principle with that which has been cited, by its opponents, as a fit precedent for it, then may the friends of the gentleman now in office indulge the hope, that when he, like his predecessor, shall be no more, his conduct too may be quoted as an example for the government of his successors.

The evidence relied on to prove the opinion of the then Executive on the case, consists of two letters from the Secretary of State, the one of the 29th of June, 1793, to Mr. Genet, and the other of the 16th of August, 1793, to Mr. Morris.

In the letter to Mr. Genet, the Secretary says, that the claimant having filed his libel against the ship William, in the Court of Admiralty, there was no power which could take the vessel out of court until it had decided against its own jurisdiction; that having so decided, the complaint is lodged with the Executive, and he asks for evidence, to enable that department to consider and decide finally on the subject.

It will be difficult to find in this letter an Executive opinion, that the case was not a case for Executive decision. The contrary is clearly avowed. It is true, that when an individual, claiming the property as his, had asserted that claim in court, the Executive acknowledges in itself a want of power to dismiss or decide upon the claim thus pending in court. But this argues no opinion of a want of power in itself to decide upon the case, if, instead of being carried before a court as an individual claim, it is brought before the Executive as a national demand. A private suit instituted by an individual, asserting his claim to property, can only be controlled by that individual. The Executive can give no direction concerning it. But a public prosecution carried on in the name of the United States can, without impropriety, be dismissed at the will of the Government. The opinion, therefore, given in this letter, is unquestionably correct; but it is certainly misunderstood, when it is considered as being an opinion that the question was not in its nature a question for Executive decision.

In the letter to Mr. Morris, the Secretary asserts the principle, that vessels taken within our jurisdiction ought to be restored, but says, it is yet unsettled whether the act of restoration is to be performed by the Executive or Judicial Department. The principle, then, according to this letter, is not submitted to the court—whether a vessel captured within a given distance of the American coast, was or was not captured within the jurisdiction of the United States, was a question not to be determined by the courts, but by the Executive. The doubt expressed is not what tribunal shall settle the principle, but what tribunal shall settle the fact. In this respect, a doubt might exist in the case of prizes, which could not exist in the case of a man. Individuals on each side claimed the property, and therefore their rights could be brought into court, and there contested as a case in law or equity. The demand of a man made by a nation stands on different principles.

Having noticed the particular letters cited by the gentleman from New York, permit me now, said Mr. M., to ask the attention of the House to the whole course of Executive conduct on this interesting subject.

It is first mentioned in a letter from the Secretary of State to Mr. Genet, of the 25th of June, 1793. In that letter, the Secretary states a consultation between himself and the Secretaries of the Treasury and War, (the President being absent,) in which (so well were they assured of the President's way of thinking in those cases) it was determined that the vessels should be detained in the custody of the Consuls, in the ports, until the Government of the United States shall be able to inquire into and decide on the fact.

In his letter of the 12th of July, 1793, the Secretary writes, the President has determined to refer the questions concerning prizes "to persons learned in the laws," and he requests that certain vessels enumerated in the letter should not depart "until his ultimate determination shall be made known."

In his letter of the 7th of August, 1793, the Secretary informs Mr. Genet that the President considers the United States as bound "to effectuate the restoration of, or to make compensation for, prizes which shall have been made of any of the parties at war with France, subsequent to the 5th day of June last, by privateers fitted out of our ports." That it is consequently expected that Mr. Genet will cause restitution of such prizes to be made, and that the United States "will cause restitution" to be made "of all such prizes as shall be hereafter brought within their ports by any of the said privateers."

In his letter of the 10th of November, 1793, the Secretary informs Mr. Genet, that for the purpose of obtaining testimony to ascertain the fact of capture within the jurisdiction of the United States, the Governors of the several States were requested, on receiving any such claim, immediately to notify thereof the Attorneys of their several districts, whose duty it would be to give notice "to the principal agent of both parties, and also to the Consuls of the nations interested; and to recommend to them to appoint by mutual consent arbiters to decide whether the capture was made within the jurisdiction of the United States, as stated in my letter of the 8th inst., according to whose award the Governor may proceed to deliver the vessel to the one or the other party." "If either party refuse to name arbiters, then the Attorney is to take depositions on notice, which he is to transmit for the information and decision of the President." "This prompt procedure is the more to be insisted on, as it will enable the President, by an immediate delivery of the vessel and cargo to the party having title, to prevent the injuries consequent on long delay."

In his letter of the 22d of November, 1793, the Secretary repeats, in substance, his letter of the 12th of July and 7th of August, and says that the determination to deliver up certain vessels, involved the brig Jane, of Dublin, the brig Lovely Lass, and the brig Prince William Henry. He concludes with saying: "I have it in charge to inquire of you, sir, whether these three brigs have been given up according to the determination of the President, and if they have not, to repeat the requisition that they may be given up to their former owners."

Ultimately it was settled that the fact should be investigated in the courts, but the decision was regulated by the principles established by the Executive Department.

The decision, then, on the case of vessels captured within the American jurisdiction, by privateers fitted out of the American ports, which the gentleman from New York has cited with such merited approbation; which he has declared to stand on the same principles with those which ought to have governed the case of Thomas Nash; and which deserves the more respect, because the Government of the United States was then so circumstanced as to assure us that no opinion was lightly taken up, and no resolution formed but on mature consideration; this decision, quoted as a precedent and pronounced to be right, is found, on fair and full examination, to be precisely and unequivocally the same with that which was made in the case under consideration. It is a full authority to show that, in the opinion always held by the American Government, a case like that of Thomas Nash is a case for Executive and not Judicial decision.

The clause in the constitution which declares that "the trial of all crimes, except in cases of impeachment, shall be by jury," has also been relied on as operating on the case, and transferring the decision on a demand for the delivery of an individual from the Executive to the Judicial Department.

But certainly this clause in the Constitution of the United States cannot be thought obligatory on, and for the benefit of, the whole world. It is not designed to secure the rights of the people of Europe and Asia, or to direct and control proceedings against criminals throughout the universe. It can then be designed only to guide the proceedings of our own courts, and to prescribe the mode of punishing offences committed against the Government of the United States, and to which the jurisdiction of the nation may rightfully extend.

It has already been shown that the courts of the United States were incapable of trying the crime for which Thomas Nash was delivered up to justice. The question to be determined was, not how his crime should be tried and punished, but whether he should be delivered up to a foreign tribunal, which was alone capable of trying and punishing him. A provision for the trial of crimes in the courts of the United States is clearly not a provision for the performance of a national compact for the surrender to a foreign Government of an offender against that Government.

The clause of the constitution declaring that the trial of all crimes shall be by jury, has never even been construed to extend to the trial of crimes committed in the land and naval forces of the United States. Had such a construction prevailed, it would most probably have prostrated the constitution itself, with the liberties and the independence of the nation, before the first disciplined invader who should approach our shores. Necessity would have imperiously demanded the review and amendment of so unwise a provision. If, then, this clause does not extend to offences committed in the fleets and armies of the United States, how can it be construed to extend to offences committed in the fleets and armies of Britain or of France, or of the Ottoman or Russian Empires?

The same argument applies to the observations on the seventh article of the amendments to the constitution. That article relates only to trials in the courts of the United States, and not to the performance of a contract for the delivery of a murderer not triable in those courts.

In this part of the argument, the gentleman from New York has presented a dilemma, of a very wonderful structure indeed. He says that the offence of Thomas Nash was either a crime or not a crime. If it was a crime, the constitutional mode of punishment ought to have been observed; if it was not a crime, he ought not to have been delivered up to a foreign Government, where his punishment was inevitable.

It had escaped the observation of that gentleman, that if the murder committed by Thomas Nash was a crime, yet it was not a crime provided for by the constitution, or triable in the courts of the United States; and that if it was not a crime, yet it is the precise case in which his surrender was stipulated by treaty. Of this extraordinary dilemma, then, the gentleman from New York is, himself, perfectly at liberty to retain either horn. He has chosen to consider it as a crime, and says it has been made a crime by treaty, and is punished by sending the offender out of the country.

The gentleman is incorrect in every part of his statement. Murder on board a British frigate is not a crime created by treaty. It would have been a crime of precisely the same magnitude had the treaty never been formed. It is not punished by sending the offender out of the United States. The experience of this unfortunate criminal, who was hung and gibbeted, evinced to him that the punishment of his crime was of a much more serious nature than mere banishment from the United States.

The gentleman from Pennsylvania and the gentleman from Virginia have both contended that this was a case proper for the decision of the courts, because points of law occurred, and points of law must have been decided in its determination.

The points of law which must have been decided, are stated by the gentleman from Pennsylvania to be, first, a question whether the offence was committed within the British jurisdiction; and, secondly, whether the crime charged was comprehended within the treaty.

It is true, sir, these points of law must have occurred, and must have been decided; but it by no means follows that they could only have been decided in court. A variety of legal questions must present themselves in the performance of every part of Executive duty, but these questions are not therefore to be decided in court. Whether a patent for land shall issue or not is always a question of law, but not a question which must necessarily be carried into court. The gentleman from Pennsylvania seems to have permitted himself to have been misled by the misrepresentation of the constitution, made in the resolutions of the gentleman from New York; and, in consequence of being so misled, his observations have the appearance of endeavoring to fit the constitution to his arguments, instead of adapting his arguments to the constitution.

When the gentleman has proved that these are questions of law, and that they must have been decided by the President, he has not advanced a single step towards proving that they were improper for Executive decision. The question whether vessels captured within three miles of the American coast, or by privateers fitted out in the American ports, were legally captured or not, and whether the American Government was bound to restore them, if in its power, were questions of law; but they were questions of political law, proper to be decided, and they were decided by the Executive, and not by the courts.

The casus fœderis of the guarantee was a question of law, but no man could have hazarded the opinion that such a question must be carried into court, and can only be there decided. So the casus fœderis, under the twenty-seventh article of the treaty with Great Britain, is a question of law, but of political law. The question to be decided is, whether the particular case proposed be one in which the nation has bound itself to act, and this is a question depending on principles never submitted to courts.

If a murder should be committed within the United States, and the murderer should seek an asylum in Britain, the question whether the casus fœderis of the twenty-seventh article had occurred, so that his delivery ought to be demanded, would be a question of law, but no man would say it was a question which ought to be decided in the courts.

When, therefore, the gentleman from Pennsylvania has established, that in delivering up Thomas Nash, points of law were decided by the President, he has established a position which in no degree whatever aids his argument.

The case was in its nature a national demand made upon the nation. The parties were the two nations. They cannot come into court to litigate their claims, nor can a court decide on them. Of consequence, the demand is not a case for judicial cognizance.

The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made on him.

He possesses the whole Executive power. He holds and directs the force of the nation. Of consequence, any act to be performed by the force of the nation is to be performed through him.

He is charged to execute the laws. A treaty is declared to be a law. He must then execute a treaty, where he, and he alone, possesses the means of executing it.

The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the constitution, since the person is named who conducts the foreign intercourse, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably, may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive Department to execute the contract by any means it possesses.

The gentleman from Pennsylvania contends that, although this should be properly an Executive duty, yet it cannot be performed until Congress shall direct the mode of performance. He says that, although the jurisdiction of the courts is extended by the constitution to all cases of admiralty and maritime jurisdiction, yet if the courts had been created without any express assignment of jurisdiction, they could not have taken cognizance of cases expressly allotted to them by the constitution. The Executive, he says, can, no more than courts, supply a legislative omission.

It is not admitted that, in the case stated, courts could not have taken jurisdiction. The contrary is believed to have been the correct opinion. And although the Executive cannot supply a total Legislative omission, yet it is not admitted or believed that there is such a total omission in this case.

The treaty, stipulating that a murderer shall be delivered up to justice, is as obligatory as an act of Congress making the same declaration. If, then, there was an act of Congress in the words of the treaty, declaring that a person who had committed murder within the jurisdiction of Britain, and sought an asylum within the territory of the United States, should be delivered up by the United States, on the demand of His Britannic Majesty, and such evidence of his criminality, as would have justified his commitment for trial, had the offence been here committed; could the President, who is bound to execute the laws, have justified the refusal to deliver up the criminal, by saying, that the Legislature had totally omitted to provide for the case.

The Executive is not only the constitutional department, but seems to be the proper department to which the power in question may most wisely and most safely be confided.

The department which is intrusted with the whole foreign intercourse of the nation, with the negotiation of all its treaties, with the power of demanding a reciprocal performance of the article, which is accountable to the nation for the violation of its engagements with foreign nations, and for the consequences resulting from such violation, seems the proper department to be intrusted with the execution of a national contract like that under consideration.

If, at any time, policy may temper the strict execution of the contract, where may that political discretion be placed so safely as in the department whose duty it is to understand precisely the state of the political intercourse and connection between the United States and foreign nations, to understand the manner in which the particular stipulation is explained and performed by foreign nations, and to understand completely the state of the Union?

This department, too, independent of judicial aid, which may, perhaps, in some instances, be called in, is furnished with a great law officer, whose duty it is to understand and to advise when the casus fœderis occurs. And if the President should cause to be arrested under the treaty an individual who was so circumstanced as not to be properly the object of such an arrest, he may perhaps bring the question of the legality of his arrest before a judge, by a writ of habeas corpus.

It is then demonstrated, that, according to the principles of the American Government, the question whether the nation has or has not bound itself to deliver up any individual, charged with having committed murder or forgery within the jurisdiction of Britain, is a question the power to decide which rests alone with the Executive Department.

It remains to inquire whether, in exercising this power, and in performing the duty it enjoins, the President has committed an unauthorized and dangerous interference with judicial decisions.

That Thomas Nash was committed originally at the instance of the British Consul at Charleston, not for trial in the American courts, but for the purpose of being delivered up to justice in conformity with the treaty between the two nations, has been already so ably argued by the gentleman from Delaware, that nothing further can be added to that point. He would therefore, Mr. Marshall said, consider the case as if Nash had been delivered up instead of having been committed for trial. Admitting even this to have been the fact, the conclusions which have been drawn from it were by no means warranted.

Gentlemen had considered it as an offence against judicial authority, and a violation of judicial rights, to withdraw from their sentence a criminal against whom a prosecution had been commenced. They had treated the subject as if it was the privilege of courts to condemn to death the guilty wretch arraigned at their bar, and that to intercept the judgment was to violate the privilege. Nothing can be more incorrect than this view of the case. It is not the privilege, it is the sad duty of courts to administer criminal judgment. It is a duty to be performed at the demand of the nation, and with which the nation has a right to dispense. If judgment of death is to be pronounced, it must be at the prosecution of the nation, and the nation may at will stop that prosecution. In this respect the President expresses constitutionally the will of the nation; and may rightfully, as was done in the case at Trenton, enter a nolle prosequi, or direct that the criminal be prosecuted no farther. This is no interference with judicial decisions, nor any invasion of the province of a court. It is the exercise of an indubitable and a constitutional power. Had the President directed the Judge of Charleston to decide for or against his own jurisdiction, to condemn or acquit the prisoner, this would have been a dangerous interference with judicial decisions, and ought to have been resisted. But no such direction has been given, nor any such decision been required. If the President determined that Thomas Nash ought to have been delivered up to the British Government for a murder committed on board a British frigate, provided evidence of the fact was adduced, it was a question which duty obliged him to determine, and which he determined rightly. If, in consequence of this determination, he arrested the proceedings of a court on a national prosecution, he had a right to arrest and to stop them, and the exercise of this right was a necessary consequence of the determination of the principal question. In conforming to this decision, the court has left open the question of its jurisdiction. Should another prosecution of the same sort be commenced, which should not be suspended but continued by the Executive, the case of Thomas Nash would not bind as a precedent against the jurisdiction of the court. If it should even prove that, in the opinion of the Executive, a murder committed on board a foreign fleet was not within the jurisdiction of the court, it would prove nothing more; and though this opinion might rightfully induce the Executive to exercise his power over the prosecution, yet if the prosecution was continued, it would have no influence with the court in deciding on its jurisdiction.

Taking the fact, then, even to be as the gentlemen in support of the resolutions would state it, the fact cannot avail them.

It is to be remembered, too, that in the case stated to the President, the Judge himself appears to have considered it as proper for Executive decision, and to have wished that decision. The President and Judge seem to have entertained, on this subject, the same opinion, and in consequence of the opinion of the Judge, the application was made to the President.

It has then been demonstrated—

1st. That the case of Thomas Nash, as stated to the President, was completely within the twenty-seventh article of the treaty between the United States and Great Britain.

2d. That this question was proper for Executive, and not for Judicial decision; and,

3d. That in deciding it, the President is not chargeable with an interference with judicial decisions.

After trespassing so long, Mr. Marshall said, on the patience of the House, in arguing what had appeared to him to be the material points growing out of the resolutions, he regretted the necessity of detaining them still longer for the purpose of noticing an observation which appeared not to be considered by the gentleman who made it as belonging to the argument.

The subject introduced by this observation, however, was so calculated to interest the public feelings, that he must be excused for stating his opinion on it.

The gentleman from Pennsylvania had said that an impressed American seaman, who should commit homicide for the purpose of liberating himself from the vessel in which he was confined, ought not to be given up as a murderer. In this, Mr. M. said, he concurred entirely with that gentleman. He believed the opinion to be unquestionably correct, as were the reasons that gentleman had given in support of it. He had never heard any American avow a contrary sentiment, nor did he believe a contrary sentiment could find a place in the bosom of an American. He could not pretend, and did not pretend to know the opinion of the Executive on this subject, because he had never heard the opinions of that department; but he felt the most perfect conviction, founded on the general conduct of the Government, that it could never surrender an impressed American to the nation which, in making the impressment, had committed a national injury.

This belief was in no degree shaken by the conduct of the Executive in this particular case.

In his own mind, it was a sufficient defence of the President from an imputation of this kind, that the fact of Thomas Nash being an impressed American, was obviously not contemplated by him in the decision he made on the principles of the case. Consequently, if a new circumstance occurred, which would essentially change the case decided by the President, the Judge ought not to have acted under that decision, but the new circumstance ought to have been stated. Satisfactory as this defence might appear, he should not resort to it, because to some it might seem a subterfuge. He defended the conduct of the President on other and still stronger ground.

The President had decided that a murder committed on board a British frigate on the high seas, was within the jurisdiction of that nation, and consequently within the twenty-seventh article of its treaty with the United States. He therefore directed Thomas Nash to be delivered to the British Minister, if satisfactory evidence of the murder should be adduced. The sufficiency of the evidence was submitted entirely to the Judge.

If Thomas Nash had committed a murder, the decision was that he should be surrendered to the British Minister; but if he had not committed a murder, he was not to be surrendered.

Had Thomas Nash been an impressed American, the homicide on board the Hermione would, most certainly, not have been a murder.

The act of impressing an American, is an act of lawless violence. The confinement on board a vessel, is a continuation of the violence, and an additional outrage. Death committed within the United States, in resisting such violence, would not have been murder, and the person giving the wound could not have been treated as a murderer. Thomas Nash was only to have been delivered up to justice on such evidence as, had the fact been committed within the United States, would have been sufficient to have induced his commitment and trial for murder. Of consequence, the decision of the President was so expressed, as to exclude the case of an impressed American liberating himself by homicide. He concluded with observing, that he had already too long availed himself of the indulgence of the House, to venture farther on that indulgence by recapitulating or reinforcing the arguments which had already been urged.

When Mr. Marshall had concluded, Mr. Dana rose and spoke against the resolutions.

An adjournment was then called for and carried—yeas 50, nays 48.

Saturday, March 8.

Case of Jonathan Robbins.

The House resumed the consideration of the report made on Thursday last, by the Committee of the whole House, to whom was referred the Message of the President of the United States, of the seventh ultimo, containing their disagreement to the motion referred to them on the twentieth ultimo; and the said motion being read, in the words following, to wit:

(See ante—Mr. Livingston's resolution, February 20.)[53]

Mr. Nicholas spoke in answer to Mr. Marshall.

The question was then taken that the House do agree with the Committee of the Whole in their disagreement to the same, and resolved in the affirmative—yeas 61, nays 35, as follows:

Yeas.—Willis Alston, George Baer, Bailey Bartlett, James A. Bayard, John Bird, John Brown, William Cooper, William Craik, John Davenport, Franklin Davenport, Thomas T. Davis, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, William Barry Grove, Robert Goodloe Harper, Archibald Henderson, William H. Hill, James H. Imlay, James Jones, John Wilkes Kittera, Henry Lee, Silas Lee, Samuel Lyman, James Linn, John Marshall, Abraham Nott, Harrison G. Otis, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, Richard Dobbs Spaight, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, Richard Thomas, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Lemuel Williams, and Henry Woods.

Nays.—Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Gabriel Christie, Matthew Clay, John Condit, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Andrew Gregg, John A. Hanna, Joseph Heister, David Holmes, George Jackson, Aaron Kitchell, Michael Leib, Matthew Lyon, Edward Livingston, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, John Randolph, John Smilie, John Smith, Samuel Smith, Thomas Sumter, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, and Robert Williams.

A motion was made to adjourn. Mr. Macon hoped the House would sit and decide the resolution proposed by the gentleman from Delaware, so as to have done with the business, and not to enter on another week with it; however, 54 rising for the adjournment, it was carried.

Monday, March 10.

Case of Jonathan Robbins.

Mr. Bayard moved that the Committee of the whole House, to whom was referred the Message of the President, relative to Thomas Nash, alias Jonathan Robbins, and a resolution submitted by himself to the House, approbating the conduct of the President, and referred to that committee, be discharged from the further consideration thereof.

A long debate arose upon this motion, in which Messrs. Randolph, Davis, Jones, Nicholas, Livingston, and Eggleston, spoke against it—and Messrs. Bayard, Bird, Otis, Kittera, Varnum, Rutledge, Edmond, Shepard, and H. Lee, in favor of it; when the question was taken by yeas and nays, and carried in the affirmative—yeas 62, nays 35.

Monday, March 17.

Medal to Captain Truxton.

Mr. Parker observed that information had been received of a very gallant action having occurred between a frigate of the United States of 38 guns, commanded by Commodore Truxton, and a French vessel of 52 guns, which was extremely bloody, but valiant on the part of the United States commander. It was not usual to grant emoluments on account of any particular gallant action, to our officers, but to give approbation was common and consistent. In other countries, he said, monuments had been erected to commemorate such splendid victories.

As a testimonial of the regard of Congress for the officers who so bravely supported the flag of the United States, and to encourage similar acts of bravery, he would propose the following resolution:

Resolved, by the Senate and House of Representatives of the United States in Congress assembled, That a golden medal, emblematical of the late action between the United States frigate Constellation of 38 guns, and the French ship-of-war La Vengeance of 52 guns, be purchased under the Secretary of the Navy, and be presented to Captain Thomas Truxton, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising Navy.

The resolution was ordered to lie on the table.

Tuesday, March 18.

Officers and Crew of the Constellation.

Mr. Parker moved that the unfinished business be postponed for the purpose of taking up the resolution which he yesterday laid on the table, relative to the captain, officers, and crew of the Constellation; when

Mr. Nicholson said he wished it might not be taken into consideration until some official information was received upon the subject from the Secretary of the Navy, upon which resolutions can be grounded. In his opinion, the resolution of the gentleman did not go far enough. It had been said, that a young officer had voluntarily lost his life, rather than shrink from his duty, which he thought ought to be noticed. He was in favor of giving his approbation of the conduct of the officers and crew in more general terms than the resolution on the table contemplated.

After some observations from Messrs. Champlin and Harper, who were of the same opinion,

Mr. Parker said, he did not suppose a doubt could exist upon this subject sufficient to require any further information than had been received through the medium of the newspapers. He had seen a letter in the possession of the Secretary of the Navy, from Captain Baker, of the Delaware, who had every opportunity of knowing the situation of the enemy's frigate, was in the same harbor, and, being a nautical man, was of course able to give a correct opinion on her then situation, and the evident marks of the bravery of her antagonist with whom she contended—this was sufficient to satisfy his mind.

If, said Mr. P., gentlemen think the resolution does not go far enough, there is no one who will more cheerfully concur in offering other testimonies of approbation, than myself. With respect to the young officer,[54] whose gallantry and good conduct had been so highly spoken of, it was his intention to have brought forward a resolution for setting up his bust in a niche of the Capitol of the city of Washington.

Mr. P. concluded with observing that he had no objection to call for information from the Secretary of the Navy, and would therefore withdraw his motion.

Mr. Parker then moved that the House come to the following resolution, viz:

Resolved, That the Secretary of the Navy be requested to lay before this House any information he may possess, respecting the engagement which lately took place in the West Indies between the United States frigate Constellation and a French ship-of-war; and, also, respecting the conduct of James Jarvis, a midshipman on board the said frigate.

Mr. Smith moved to strike out the words in italics, which created considerable debate; when

Mr. Bird proposed to insert in lieu thereof, the following words: "And also upon the conduct of any officer or other person on board said frigate, who may have particularly signalized himself in the said action;" which Mr. B. supposed would meet the intention of the mover, and be less liable to objection than the words proposed to be stricken out.

Mr. Parker having consented to the modification, the resolution was agreed to.

Wednesday, March 19.

Military Academy, &c.

Mr. Otis, from the Committee of Defence, reported a bill for establishing a Military Academy, and for better organizing the corps of Engineers and Artillerists.

The bill was proceeding to be read, when Mr. Otis suggested that as this bill contained much the same in detail as a report on the subject made by the Secretary of War, with which every gentleman was acquainted, he supposed the reading would not be necessary.

Mr. Macon said he should have no objection to its being read a first time, though he did not think it necessary; but he would give notice that it was his intention to move that the bill be rejected. He mentioned his reasons to be the expense of the measure generally, which it was an improper time to incur.

The bill having been read, he made the motion.

Mr. Otis and Mr. Champlin answered. Mr. Varnum supported the motion, which was at length negatived, 49 to 42; and the bill was referred to a Committee of the whole House.

Thursday, March 20.

Removal of Seat of Government.

Mr. Otis observed that it appeared to be the general opinion that the seat of Government would be removed to the Federal City, and that Congress would commence their next session at that place; and as some preliminary measures were necessary to be made previous thereto; and as it would be reposing too much power in the Commissioners who now act there to rely entirely on their reports; and as some measures must be reported and adopted before the end of the present session, he laid on the table the following resolution:

"Resolved, That a committee be appointed to consider what measures are expedient for Congress to adopt, preparatory to the removal of the seat of Government, with leave to report by bill or otherwise."

Amy Dardin's Case.

The House went into a committee on the report of the Committee of Claims on the petition of Amy Dardin, which was that the prayer of the petitioner ought not to be granted. Being taken up in the House, the propriety and impropriety of granting it was again contended, when there appeared in favor of the report 42, against it 42. The Speaker decided in the affirmative, so that the claim was not admitted.

Friday, March 21.

Action of the Frigate Constellation.

The Speaker laid before the House a report from the Secretary of the Navy, in compliance with the instructions of the House, respecting the engagement which occurred between the frigate Constellation and a French ship-of-war. The report enclosed a letter from Captain Truxton, detailing the action, and also extracts of letters from the American Consul at Curaçoa, and one from the American agent at St. Kitts, respecting the disabled state of the French ship La Vengeur. As to any particular specimen of valor, the Secretary received no information; but that all the officers and men had acted with the most unexampled bravery and decorum was attested by the captain, whose good management was evinced by the singular success of the action. The Secretary mentions the singular bravery of James Jarvis, a Midshipman, who preferred death to quitting his post.

On motion of Mr. H. Lee, this report, together with a resolution proposed some days since by Mr. Parker, was referred to the Naval Committee.

Monday, March 26.

Medal to Captain Truxton.

Mr. Parker, from the Naval Committee, reported the following resolutions:

"Resolved, by the Senate and House of Representatives of the United States, in Congress assembled, That the President of the United States be requested to present to Captain Thomas Truxton, a golden medal, emblematical of the late action between the United States frigate Constellation, of 38 guns, and the French ship-of-war La Vengeur, of 54 guns, in testimony of the high sense entertained by Congress of his gallantry and good conduct in the above engagement, wherein an example was exhibited by the captain, officers, sailors, and marines, honorable to the American name, and instructive to its rising navy.

"Resolved, That the conduct of James Jarvis, a midshipman in said frigate, who gloriously preferred certain death to an abandonment of his post, is deserving of the highest praise; and that the loss of so promising an officer is a subject of national regret."

The House then proceeded to the consideration of these resolutions; the first of which being under consideration,

Mr. Randolph said, that inasmuch as he could not give his assent to these resolutions, he felt impressed with the propriety of stating the reasons which would govern his vote.

It was not with any intention to detract from the deserved reputation which had been so nobly earned by the captain, officers, and crew of the Constellation; still less to withhold the well-earned applause due to that gallant youth who had sacrificed his life in the prosecution of his duty. It was to the first of these resolutions, only, that he should deny his concurrence. He should do this, unless the gentlemen of the Naval Committee should show to him that it was the duty of the commander of the Constellation to persist in the chase, and compel to action a ship of such superior force. This conduct was, in his opinion, rash; and, when the situation of the United States and France was taken into consideration, it was peculiarly unadvisable. Our Commissioners were at this time in the capital of that country negotiating peace. How did the pursuit of this ship—the forcing her into an action, which ended in the crippling of both vessels—comport with that protection which was to be afforded to our commerce by the Constellation?

Mr. R. said that his duty obliged him to act upon his own opinion; and, however singular it may appear, he should vote against the first resolution, unless the gentleman who brought it forward would make it appear that it was the duty of Captain Truxton to compel the Vengeance to come to action, when he knew her to be of such superior force. The second resolution met his most hearty approbation.

Mr. Parker said, what the present state of things between the two countries might be, in the opinion of his colleague, he could not say; but Mr. P. conceived it was no other than it was at the time Congress passed a bill which prescribed the conduct of our naval commanders. In that bill they were authorized to take or destroy all French armed vessels: under these orders Captain Truxton left this country, and, in obedience to instructions to that effect, he pursued and engaged this vessel, which, though of superior force, he had beaten. Had he not attacked her, it is most probable she would have proceeded against our commerce. The law having been passed by Congress, if the President of the United States had not given orders conformably thereto, he would have been subject to impeachment. He, therefore, presumed it to be his duty; and, most certainly, such orders being given to the commanders, they were bound to conform to them. Mr. P. thought that this and greater approbation ought to be expressed by Congress for conduct so brave and unprecedented. In some countries monuments had been raised, but this was unnecessary, though merited. Our naval exertions were very recent and confined, but an instance of extraordinary valor having occurred it ought to be honorably and suitably noticed.

Mr. Nicholas said, however he might agree with his colleague (Mr. Randolph) in a desire that no conduct should be encouraged that would tend to aggravate France in the present situation of things, he could not agree with him in his present sentiments. While we were in a state of actual, though not of declared war, Mr. N. thought it was naturally to be expected that our commanders would act in their complete military character, when our ships were arrayed for battle, and power given to act up to the full rigor which the laws of honor and of war would warrant. In the conduct of the captain, as well as the crew, Mr. N. said, he saw nothing but what was extremely laudable, and highly meriting approbation.

Mr. Lyon said he rose to request the division of the question on the resolutions. He was disposed to vote for the latter resolution, and not for the former.

The Speaker declared they would be divided, and that the question before the House was on the agreeing to the first resolution.

Mr. Lyon observed that he had voted for the equipment of the three frigates under an impression that they would be employed solely for the protection of the commerce of this country: but now he found himself called upon to give thanks or praise to the commander of one of those frigates, and for what? for going out of the station assigned to him, as the most proper for the protection of the trading vessels of this country, in chase of a ship-of-war of much superior force; and for reducing the ship under his command, as well as that of his opponent, to a mere wreck. Mr. L. said he had seen nothing in the orders which had been published directing him to do this, nor did he think policy or prudence dictated the measure. Let all our naval commanders be excited to follow this example; let them play or fight each of them their vessel against a French vessel-of-war of superior force in the same way, and our naval force is crippled, while the French will scarcely feel their loss; then our commerce would be wholly at their mercy. Besides these considerations, what is there to defend that commerce, on the station left destitute by the Constellation, while she is refitting. For his part he was as glad and proud as any gentleman that our officers, and our sailors, and our marines, had behaved gallantly and done themselves and their country honor, in the late action, but he did not feel himself bound, under existing circumstances, to give distinguished praise to the conduct which produced it; he should therefore vote against the resolution.

Mr. J. Brown would vote for this resolution for the very reason which some gentlemen urged for voting against it. He thought the very fact of chasing a ship of superior force, and forcing her to an action which had been attended with success, was a commendable act. This to him would be the only inducement for paying so high a mark of national respect. If it had been an attack upon a vessel of inferior force, he should not think it worth notice. The objection was partly on account of the French ship being of superior force; surely this would rather be a reason why we should have vessels of greater force than we have now; therefore he hoped the worthy member would suffer that brave officer to go to sea next time with a 74-gun ship under his command, when he would doubtless bring the enemy to a good account.

The yeas and nays were called on this resolution and carried—yeas 87, nays 4, as follows:

Yeas.—Willis Alston, George Baer, Bailey Bartlett, John Bird, Phanuel Bishop, Jonathan Brace, John Brown, Robert Brown, Samuel J. Cabell, Christopher G. Champlin, William C. C. Claiborne, John Condit, William Cooper, Samuel W. Dana, John Davenport, Thomas T. Davis, John Dawson, John Dennis, George Dent, Joseph Dickson, William Edmond, Joseph Eggleston, Lucas Elmendorph, Thomas Evans, Abiel Foster, Dwight Foster, John Fowler, Jonathan Freeman, Albert Gallatin, Henry Glenn, Samuel Goode, Chauncey Goodrich, Elizur Goodrich, William Gordon, Edwin Gray, Roger Griswold, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Archibald Henderson, William H. Hill, David Holmes, Benjamin Huger, James H. Imlay, James Jones, Aaron Kitchell, John Wilkes Kittera, Henry Lee, Silas Lee, Michael Leib, Samuel Lyman, James Linn, Nathaniel Macon, John Marshall, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, Harrison G. Otis, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jr., Samuel Sewall, James Sheafe, William Shepard, John Smilie, John Smith, Samuel Smith, Richard Stanford, David Stone, Benjamin Taliaferro, George Thatcher, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, Robert Williams, Lemuel Williams, and Henry Woods.

Nays.—George Jackson, Matthew Lyon, John Randolph, and Thomas Sumter.

The other resolution was adopted unanimously.

Monday, March 31.

Lake Superior Copper Mines.

The House, according to the order of the day, again resolved itself into a Committee of the whole House on the report of the committee appointed, on the 5th instant, to inquire into the expediency of authorizing the President of the United States to appoint an agent to purchase of the Indians a tract of land on the south side of Lake Superior, which shall include the great copper bed; and, after some time spent therein, the committee rose and reported a resolution thereupon; which was twice read, and agreed to by the House, as follows:

Resolved, by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper mines on the south side of Lake Superior, and to ascertain whether the Indian title to such lands as might be required for the use of the United States, in case they should deem it expedient to work the said mines, be yet subsisting; and, if so, the terms on which the same can be extinguished: And that the said agent be instructed to make report to the President, in such time as the information he may collect may be laid before Congress at their next session.

Ordered, That the Clerk of this House do carry the said resolution to the Senate, and desire their concurrence.

Wednesday, April 2.

Removal of the Seat of Government.

The House then resolved itself into a committee on the bill to make further progress for the removal and accommodation of the Government of the United States.

A motion was then made to fill a blank for the accommodation of the household of the President, about which considerable conversation occurred; when Mr. Rutledge moved that the committee rise, in order that time may be given for learning the amount of money wanting for this object, and because he supposed the Chairman of the committee, who was absent, might be able to give that information. The motion was afterwards withdrawn, but renewed by the Speaker, and at length carried.

Thursday, April 3.

Lands given in satisfaction of Judgments.

Mr. Harper observed that in some of the States lands were received in satisfaction of judgments, which also was the case in such places where the United States were plaintiffs. To remedy what he conceived an evil, he laid on the table the following resolution:

"Resolved, That a committee be appointed to inquire and report, by bill or otherwise, whether any, and what, further provisions are necessary to be made relative to the sales of real estate delivered to the United States in satisfaction of judgments against persons indebted thereto."

Three members were appointed.

Friday, April 4.

Removal of the Seat of Government.

The House then went into Committee of the Whole on the bill for the removal and accommodation of the Government of the United States.

Mr. Harper proposed to amend the act so as that the sum to accommodate the household of the President of the United States with furniture, in addition to what was now in possession of the President, should not operate until after the third of March next. This he did, he said, in consequence of some constitutional doubts which he had expressed. The constitution declaring that the salary of the President should receive no addition nor diminution during his being in office. This was concurred in.

The question then was, what sum should be allowed for that purpose; $20,000, $15,000, and $10,000, were severally named.

Mr. Randolph, considering the principle itself unconstitutional, moved, in order to defeat the section altogether, (it having been amended and being out of order to move its being stricken out,) to insert the sum of $500. These different sums called forth a lengthy debate. The sum of $20,000 was negatived—45 to 39. That of $15,000 was carried—yeas 44, nays 42.

The bill being gone through, was ordered to be engrossed for a third reading on Monday.

Friday, April 18.

Disputed Elections of President, &c.

Mr. Nicholson called for the order of the day on the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States.

Mr. Harper moved that it be postponed till Monday.

Mr. Nicholson, after expressing his abhorrence of the principles contained in the bill, then moved that it be postponed till the first Monday in December next.

Messrs. Harper, Dana, Rutledge, and Marshall, opposed this motion; and Messrs. S. Smith, Gallatin, Randolph, Nicholson, and Nicholas, supported it.

The question was taken by yeas and nays, and decided in the negative—yeas 48, nays 52.

Mr. Harper's motion for postponement till Monday, was then agreed to—ayes 54.

Monday, April 21.

Admirals in the Navy.

Mr. Parker, from the Naval Committee, reported a bill for the appointment of admirals for the navy.

[This bill provides for the appointment of one Vice Admiral and four Rear Admirals, and arranges the fleet into squadrons.]

It was read a first time, and on the question for the second reading, it was carried—37 to 31. Having been read a second time, Mr. Gallatin moved its postponement till the first Monday in December next.

The Speaker said the question was, whether it should be committed or not? The question for commitment was carried, 37 to 32. The question was then to make it the order of the day for the first Monday in December next.

Mr. Eggleston hoped it would be postponed. He said it would be agreed upon to suspend the building of the 74's for the present year; in addition to this our difference with France would most probably be soon adjusted. Another reason was, it would incur an addition of expense, which it would be improper to go into, having recently agreed to borrow $3,500,000. He was really surprised to hear such a bill proposed; he scarcely could think his colleague sincere.

Mr. Parker said that the building of the 74's was not suspended, but it was thought advisable not to hurry their building. He stated a number of conveniences that would attend the new arrangement; that the whole expense would not be more than $10,000, but owing to the advantages, he believed it would be a real saving. He did not think there could be any certainty of a peace, from the revolutionary disposition of France; but even if it was certain that peace would be made with that nation, it was not certain that the combined powers would not renew their hostilities. He wished this measure to be adopted, even if it was at the expense of the army. The return of peace would render the army nugatory, except just enough for the garrisons; the whole of the army expenses, he said, was upwards of four millions, but the whole sum expended on the navy (really a more efficient defence and advantage) was little more than two millions. He wished our naval defence to be nurtured and rendered respectable, for which the squadron arrangements and appointments of suitable commanders were necessary.

Mr. Champlin also spoke in favor of the bill, and in favor of its commitment for an earlier day.

Mr. Claiborne could not think the gentleman (Mr. Parker) sincere in his professions that the army was not necessary, when he perceived that every motion to reduce the army, which by other gentlemen was thought absolutely necessary, had as uniformly been opposed by that gentleman. Mr. C. said he did not look forward to a period when the navy as well as the army would be unnecessary. This appointment might take place at any time when there should be necessity of it; and, therefore, as it was not pretended the 74's could be built before the next session, it would then be time enough to think of voting these officers.

The Speaker said that it was unknown in the Parliamentary proceedings of any country that the merits of a bill were discussed on a motion for postponement; he must therefore say that any discussion on the bill was out of order, and that gentlemen must confine themselves merely on the question of the day this bill should be made the order for.

Mr. Harper stated some of the inconveniences that must attend gentlemen who brought in, or would wish to support a bill being presented, recommending its provision by a motion to postpone; he conceived the bill a valuable one, and wished for an opportunity of endeavoring to convince the House of that fact, but he was precluded by the decision of the Chair, he must therefore beg leave to appeal from the decision.

The question was put, "Is the decision of the Chair right?" and carried—yeas 65.

Mr. Smith said he should vote for this bill being the order for December next, but if the 74's were then ordered to proceed, he should vote for this bill, if then proposed.

The yeas and nays were taken on the question, "Shall this bill be postponed till the first Monday in December next?" and decided in the negative—yeas 44, nays 45, as follows:

Yeas.—Willis Alston, Theodorus Bailey, Phanuel Bishop, Robert Brown, Samuel J. Cabell, Matthew Clay, William C. C. Claiborne, John Condit, Thomas T. Davis, John Dawson, Joseph Eggleston, Lucas Elmendorph, John Fowler, Albert Gallatin, Andrew Gregg, William Barry Grove, John A. Hanna, Joseph Heister, David Holmes, George Jackson, James Jones, Michael Leib, Matthew Lyon, James Linn, Nathaniel Macon, Peter Muhlenberg, Anthony New, John Nicholas, Joseph H. Nicholson, Abraham Nott, John Randolph, John Smilie, John Smith, Samuel Smith, Richard Dobbs Spaight, Richard Stanford, David Stone, Thomas Sumter, Benjamin Taliaferro, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, and Robert Williams.

Nays.—George Baer, Bailey Bartlett, James A. Bayard, Jonathan Brace, John Brown, Christopher G. Champlin, William Cooper, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, George Dent, Joseph Dickson, William Edmond, Thomas Evans, Abiel Foster, Dwight Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Roger Griswold, Robert Goodloe Harper, Benjamin Huger, James H. Imlay, Henry Lee, Silas Lee, Samuel Lyman, Lewis R. Morris, Robert Page, Josiah Parker, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, John Rutledge, jun., Samuel Sewall, James Sheafe, William Shepard, George Thatcher, John Chew Thomas, Richard Thomas, Robert Waln, Lemuel Williams, and Henry Woods.

The bill was then made the order for to-morrow.

Friday, April 25.

Congress Library.

Mr. Dennis said that by the act passed the present session, further to provide for the removal and accommodation of the Government of the United States, a sum not exceeding $5,000 was appropriated for the purpose of procuring a Library. In order to carry that provision into execution, he would move the following resolution:

"Resolved, That —— be a committee, jointly with such committee as may be appointed on the part of the Senate, for the purpose of making out a catalogue of books, and adopting the best mode of procuring a Library, at the city of Washington; and for adopting a system of rules and regulations relative thereto."

This motion was agreed to, and Messrs. Waln, Evans, and Powell, appointed.

Saturday, April 26.

Slave Trade.

The House resolved itself into a committee on the bill from the Senate, in addition to the act, entitled "An act prohibiting the carrying on the slave trade from the United States to any foreign place or country."

Mr. J. Brown said, when the motion was first laid on the table, he thought it improper to prevent the citizens of the United States enjoying the benefits of a trade enjoyed by all the European nations. He really was in hopes that the good sense of the select committee would have permitted them to have seen the policy of realizing the act in question. Many members of the House, he observed, knew how the former act was passed; they knew that Congress was drilled into it by certain persons who would not take no for an answer. It was well known that the Abolition Society, otherwise the Society of Friends, as they were called, were very troublesome until they got that act passed. It was also well known that those people did not do much to support the Government, but that they did as much as they could to stop the measures of the Government, and particularly our defensive system, on which our national security depended.

Mr. Nicholas asked whether it was in order to abuse any class of citizens in this manner, and particularly since no motion was before the committee?

The Chairman said he conceived the gentleman to be in order, since he supposed he was about to make a motion affecting the principle of the bill.

Mr. Brown resumed. He was only speaking, agreeably to his information, how this bill came originally into existence. He was certain that this nation having an act against the slave trade, did not prevent the exportation of a slave from Africa. He believed we might as well, therefore, enjoy that trade, as to leave it wholly to others. It was the law of that country to export those whom they held in slavery—who were as much slaves there as those who were slaves in this country—and with as much right. The very idea of making a law against this trade, which all other nations enjoyed, and which was allowed to be very profitable, was ill policy. He would further say that it was wrong, when considered in a moral point of view, since, by the operation of the trade, the very people themselves much bettered their condition. It ought to be a matter of national policy, since it would bring in a good revenue to our Treasury. It was not pleasing to him, Mr. B. said, to pay an interest of 8 per cent. for our loan: rather than borrow money, he would wish to be paying off some of our old standing debt, which could be done by increasing our commerce, or rendering it free. He wished it to be free as the wind that blew—from one end of the world to the other. As he observed before, he believed not one more slave would be exported from Africa, while our merchants and our revenue would enjoy the benefit.

Mr. B. said, our distilleries and manufactories were all lying idle for want of an extended commerce. He had been well informed that on those coasts New England rum was much preferred to the best Jamaica spirits, and would fetch a better price. Why should it not be sent there, and a profitable return be made? Why should a heavy fine and imprisonment be made the penalty for carrying on a trade so advantageous?

But, he observed, if it was thought advisable that the old act should continue, he would wish it could be made to meet the purpose altogether, and prevent the system of slavery entirely, so that equal advantages might be given to all the inhabitants of the Union; without this, it would, as it ever had been, remain a great disadvantage. He therefore moved that the committee rise, in order to postpone the bill. He believed the House would be better prepared to meet it in a few days.

Mr. Nicholas seconded the motion, not but that he was prepared to decide on it, but that there might be opportunity given to express an opinion. He really could not understand the gentleman, when he said that our people being employed in that trade would not add nor diminish the number exported. This was certainly a wrong calculation. These people were enslaved for their masters, or to supply some foreign market. Certainly if the number of purchasers were increased, the number of slaves would be increased. Surely the gentleman would not wish them brought into the United States when he talked of their condition being improved; this was a fact, to be sure, but would it be policy so to do?

But another and an important point was touched upon—that he would wish the law to be made to meet another object, if it was determined to prohibit the trade in this country. As a Southern man, Mr. N. said, he would observe that he was placed in a most unfortunate situation, indeed, in being obliged, in common with other people of those States, to keep men in a state of slavery: but he had the consolation to inform the House, that he believed the people of the Southern States were wiping off the stain entailed upon them by their predecessors, in endeavoring to ameliorate the situation of that race of people as much as possible. This appeared to be an increasing disposition. He hoped the gentleman would have an opportunity to produce all his arguments on this subject, in his endeavors either to get the law repealed or to strengthen it, agreeably to his wish, in order that he might be satisfied that he would not find an advocate in the House.

Mr. D. Foster spoke against the committee rising.

Several sections of the bill were then gone through with, when the committee rose, and obtained leave to sit again.

Monday, April 28.

The Slave Trade.

Mr. Rutledge moved that the Committee of the Whole, to whom were referred the bill for preventing the carrying on the slave trade, &c., be discharged from further consideration thereof. He conceived it to be one of the most defective bills that ever was before Congress, because the object intended was in nowise provided for, or utterly impracticable.

Mr. Bayard was of the same opinion. He had taken some pains to examine the bill, but was obliged to conclude it extremely imperfect. The objects of the former bill, and which was intended to be improved, were, to prevent the citizens of the United States having any right in vessels so employed; and also to prevent the citizens of the United States being employed on board any such vessels. He trusted that a great majority of the members of the House would be in favor of those principles, and effectually promote them. It would indeed be extremely dishonorable in a country like this, to affirm such a trade, so contrary to all those principles held dear in the United States, and which ought to be promoted. His desire was, that a bill should be constructed upon the true principles of the intent of Congress: so far he thought they might go, but no farther. To be sure, as the gentleman from Rhode Island (Mr. J. Brown) observed, the Government could derive revenue from the encouragement of this trade, but he thought a more dishonorable item of revenue could not be established.

The committee was discharged.

Mr. Bayard then moved that the bill should be referred to a select committee.

Mr. Rutledge hoped this would not be agreed to; he was not disposed at this late day of the session to take up any new business that was not of urgency. He thought it was perfectly unnecessary to make a new act upon the subject; he believed the former act did every thing that was necessary or practicable to be done. What more could be wanted than that persons engaged in this traffic should forfeit their ships and pay a fine, besides, in many instances, imprisonment of the person offending? Surely that was all the occasion required. The different States which had heretofore imported those people into the United States had established the policy not to import any more; but in addition to this willing restriction, the Federal Government thought proper to prevent the trade being carried on, by our ships, to those countries which did suffer their importation. This was going very far indeed, but so far it was thought proper to go, to furnish a peace-offering to those philanthropists whose urgency was great to accomplish the general destruction of the trade. However, the activity of the people of the four New England States first engaged them in this profitable traffic; their produce would bring a good price on the African coast, and why they might not enjoy the profit of it as well as the English he could not conceive. He believed it to be impossible effectually to prevent it. Some gentlemen, indeed, had talked of authorizing our cruisers to seize vessels of this kind, but, suppose they were confiscated, what was to be done with their cargoes? They could not be brought into the United States. Where could they be carried? It was not consistent with the policy of the West India Islands to suffer them to land there, since it was their practice to keep these people in bondage, and they did not want, nor could they suffer free men to inundate those colonies. He knew of no place where they could be landed but St. Domingo, and as these people would not have been of those who had procured the freedom of slaves there—were not of those who had spread devastation and murder throughout that island, it was probable they would spurn them from their shores. What then was to be done with them? Surely no gentleman would wish them to be drowned, and it would be as absurd to think of sending them back to Sierra Leone! These difficulties he thought insuperable.

Mr. Waln hoped the bill would be committed, and that the provisions of it would be made effectual to its object. As for the people of Pennsylvania, he believed he could say they were unanimously in favor of the trade being put an end to most completely; which was in nowise done by the law now in force, nor by the bill now proposed. He said it was well known, that great grievances did exist for want of the due execution of the law, and much greater than were generally known, and hence it was that no more was heard of it from the people on this subject. He had been well informed that great evasions had taken place, and that this unlawful trade was becoming more and more in use. In the last year he believed that near forty vessels entered the West Indies with this illicit species of commerce. In some parts of the United States, he had been well informed, it was become so popular, that if a vessel was seized and sold, it was impossible to get any person to bid for her, and therefore the owner was enabled to repurchase her at a very low price indeed. It would be much better to repeal the old law, and open the trade, than to suffer the law to continue when nearly a nullity. But this he believed was not the disposition of the House; he believed the House could carry the principle into effect, and he was sure that a very great majority of the American people would wish them to do it.

The motion for recommitment was carried by a very large majority, and three members appointed.

Military Academy, &c.

Mr. Eggleston said, since he found the House so much disposed to prepare for the close of the session by postponing unnecessary business, he would move that the bill for establishing a Military Academy, and for the better organization of the corps of Artillerists and Engineers, be postponed till the first Monday in December next.

After some observations against the motion, by Messrs. Parker, Champlin, and H. Lee, and in favor of it by Messrs. Eggleston and Shepard, it was carried—yeas 64, nays 23.

Treaty with Great Britain.

The House went into a committee on the bill for the execution of the 27th article of the Treaty with Great Britain.

A motion of Mr. Nicholas was under consideration, that no person whose case was cognizable in any of our courts should be delivered up. This caused a lengthy debate; it was advocated by Messrs. S. Smith, Nicholson, and Gallatin, and opposed by Messrs. Bayard, Dana, and Dennis. It was negatived 45 to 42. After which the committee rose, obtained leave to sit again, and the House adjourned.

Tuesday, April 29.

An engrossed bill to promote the manufacture of sheet copper within the United States, by incorporating a company for carrying on the same, was read the third time, and passed.

Thursday, May 1.

Appropriation for holding Indian Treaties.

The House resolved itself into a Committee of the whole House on the report of the committee to whom was referred, on the seventh of March last, the petition of William Hill and others, and, after some time spent therein, the committee rose and reported two resolutions thereupon; which were severally twice read, and agreed to by the House, as follows:

Resolved, That the sum of —— dollars ought to be appropriated by law to defray the expenses of such treaty or treaties as the President of the United States may deem it expedient to hold with any nation or nations of Indians south-west of the river Ohio.

Resolved, That provision ought to be made by law, authorizing and enabling all persons who, under the laws of North Carolina, and in conformity to the regulations and provisions thereof, have entered, surveyed, located, or obtained, grants of any of the lands ceded by the said State to the United States, in such manner as would have vested a good title under the said State of North Carolina, if such cession had not been made, to enter upon, occupy, and possess, the same, or to remove thereto their location from such lands, the titles whereto shall not be extinguished, whenever, and as soon as the Indian title or claim to a sufficient portion of the said land shall be extinguished, under the authority of the United States; and to possess and enjoy the same in as full and ample manner as if the same had been derived from, or under, the United States.

Ordered, That a bill or bills be brought in, pursuant to the first resolution; and that Mr. Pinckney, Mr. Chauncey Goodrich, Mr. Henderson, Mr. Nicholas, and Mr. Thatcher, do prepare and bring in the same.

Saturday, May 3.

Slave Trade.

The House went into committee on the bill to prohibit carrying on the slave trade to any foreign country. The committee rose and reported the bill. On the question, when it should be read a third time, it was carried for to-day. On the question for its passing, a long and warm debate ensued.

Several attempts were made to postpone its passing, but to no effect. At length the question was taken—yeas 67, nays 5, as follows:

Yeas.—Willis Alston, George Baer, Theodorus Bailey, Bailey Bartlett, James A. Bayard, Phanuel Bishop, Jonathan Brace, Robert Brown, Samuel J. Cabell, Matthew Clay, William C. C. Claiborne, John Condit, William Cooper, Samuel W. Dana, John Davenport, Franklin Davenport, John Dennis, William Edmond, Joseph Eggleston, Thomas Evans, Abiel Foster, Dwight Foster, Albert Gallatin, Henry Glenn, Chauncey Goodrich, Elizur Goodrich, Edwin Gray, Andrew Gregg, Roger Griswold, William Barry Grove, John A. Hanna, Robert Goodloe Harper, Thomas Hartley, Joseph Heister, William H. Hill, David Holmes, James H. Imlay, Aaron Kitchell, Silas Lee, Michael Leib, Samuel Lyman, Nathaniel Macon, Lewis R. Morris, Peter Muhlenberg, John Nicholas, Abraham Nott, Robert Page, Thomas Pinckney, Jonas Platt, Leven Powell, John Read, Samuel Sewall, William Shepard, John Smilie, John Smith, David Stone, Thomas Sumter, George Thatcher, John Chew Thomas, John Thompson, Abram Trigg, John Trigg, Joseph B. Varnum, Peleg Wadsworth, Robert Waln, and Robert Williams.

Nays.—John Brown, George Dent, Joseph Dickson, Benjamin Huger, and John Rutledge, jr.

And the House adjourned.

Tuesday, May 6.

Additional Revenue.

The House resolved itself into a Committee of the Whole on the further report of the Committee of Ways and Means, on the subject of the revenue; when the first resolution, laying an additional duty of twenty per centum on wines, after being amended, on motion of Mr. Griswold, to read as follows, was adopted:

"Resolved, That it is expedient to lay an additional duty of twenty per centum on the amount of the present duty upon wines imported into the United States, and to vary the scale of duties in such manner as to comport with the plan of the Secretary of the Treasury."

The second resolution was agreed to without debate as follows:

"Resolved, That it is expedient to lay an additional duty of two and a half per centum ad valorem on such goods, wares, and merchandise, imported into the United States, as are now subject to a duty of ten per centum ad valorem."

The third resolution was opposed by Messrs. Harper and S. Smith, and supported by Mr. Griswold; after which the committee rose, and obtained leave to sit again.

Wednesday, May 7.

A message from the Senate informed the House, that they have concurred in the amendments of this House, to the bill relative to the slave trade with several amendments, to which they desire the concurrence of the House; also, that the Senate insist on some of their amendments disagreed to by this House, to the bill supplementary to an act for an amicable settlement of limits within the State of Georgia, and for establishing a government in the Mississippi Territory.

Additional Army.

Mr. Harper said, that by the terms of enlistment of the additional army, they were engaged to serve for three years, or until an amicable adjustment of the differences existing between the United States and France; from which circumstance, the President was precluded, even if he knew the preliminaries of peace to be adjusted, from disbanding it until a treaty should be actually concluded and ratified by the two Governments—whereby the troops would be kept for perhaps six months in service unnecessarily. The Navy and other parts of our defensive system, were upon a different footing. He wished the Army to be placed on a similar one, and therefore moved the following resolution:

"Resolved, That it is expedient to authorize the President of the United States to discharge the additional army thereof, as soon as the state of things between the United States and the French Republic will warrant the measure."

The resolution was agreed to, and referred to the Committee of the whole House, to whom was committed the bill from the Senate, to suspend part of the act entitled "An act to augment the Army of the United States."

Additional Revenue.

The House again resolved itself into a Committee of the Whole on the further report of the Committee of Ways and Means on the subject of revenue; and the tax on drawbacks being under consideration, Mr. Griswold and Mr. Harper again spoke for and against the motion. Mr. Nicholas, Mr. Huger, and Mr. Randolph, also spoke against the motion; after which the question was taken and negatived, only 23 votes being in favor of it.

The third resolution, to lay an additional duty of one half per cent. per pound on brown sugar and coffee imported into the United States was opposed by Mr. Griswold, who doubted much the propriety of laying an additional duty on coffee, and therefore moved to strike out that article. The motion was opposed by Mr. Harper, and advocated by Mr. Sewall, who was of opinion that this article was frequently smuggled, and was apprehensive it would be more so, if an additional duty were laid, and therefore would injure the revenue.

The motion was carried—yeas 38, nays 21.

The question on the resolution as amended, was, after some debate, put and carried—yeas 45, nays 28.

The fourth resolution reported, to retain two and a half per centum on all drawbacks allowed for goods re-exported from the United States, in addition to the sums heretofore directed to be retained by law, and also on the whole of the additional duty on goods imported in foreign ships or vessels, was agreed to without debate. The committee then rose, and, upon the question, Will the House concur with the committee in their agreement to the resolution laying an additional duty on sugar? the yeas and nays were called for, and taken—54 to 28.

The other resolutions, as amended, were also agreed to, and the Committee of Ways and Means directed to bring in a bill or bills conformable thereto.

Thursday, May 8.

Memory of Washington.

Mr. H. Lee, from the select committee appointed to consider what measures it would be proper for Congress to adopt for paying suitable respect to the memory of the man first in peace, first in war, and first in the hearts of his countrymen—the deceased General Washington—made a report, recommending the adoption of the following resolutions:

"Resolved, That the resolution of Congress passed in the year 1783, respecting an equestrian statue of General Washington, be carried into immediate execution, and that the statue be placed in the centre of an area to be formed in front of the Capitol.

"Resolved, That a marble monument be erected by the United States in the Capitol at the city of Washington, in honor of General Washington, to commemorate his services, and to express the regrets of the American people for their irreparable loss.

"Resolved, That the President of the United States be requested to give such directions as may appear to him proper, to carry the preceding resolutions into effect; and that for the present, the sum of $100,000 be appropriated for these purposes."

The resolutions were referred to a Committee of the whole House, and immediately taken into consideration; when

Mr. Harper moved to amend the first resolution, by inserting that a mausoleum be erected for General Washington, in the city of Washington, instead of the statue proposed, which was carried; the other resolutions were negatived, of course.

The committee then rose, and the resolution, as amended by Mr. Harper, was agreed to by the House, and a bill ordered to be brought in pursuant thereto.

Friday, May 9.

The Treasury Department.