ELEVENTH CONGRESS.—THIRD SESSION. PROCEEDINGS AND DEBATES THE HOUSE OF REPRESENTATIVES. (continued 3)

Before I proceed, however, I will premise that all the arguments in support of the right to incorporate a bank, as deducible from the provisions of the constitution itself, are built up by the aid of the clause of the constitution, which has been sometimes called "the sweeping clause." I allude to the clause which declares that Congress shall have the right to pass all laws necessary and proper for the carrying into execution the delegated powers. All the powers in the constitution are given for certain ends or objects. But each power is not a general authority to attain a particular object, and comprehending, of course, all the means or powers applicable to its accomplishment; but, in most cases, it is a specific means for effecting some particular end, and all other means or powers (for means and powers are the same thing) conducive to the same end, are expressly excluded by the restrictive clauses of the constitution.

The mode of reasoning adopted by General Hamilton, and the other advocates of implied powers, is this: They first search for the end or object for which a particular power is given; and this object will be an immediate or ultimate one, as may best suit the purpose of the argument. Having ascertained the end or object, they abandon the power; or, rather, they confound the power and the object of it together, and make the attainment of the object, and the execution of the power given to accomplish it, convertible terms. Whatever, they say, attains the object for which any power is given, is an execution of that power. But the constitution gives to Congress a right to make all laws necessary and proper for carrying into execution the delegated powers; and, therefore, as the execution of a power and the attainment of its object are synonymous terms, the constitution gives to Congress a right to make all laws necessary and proper for attaining the ends or objects for which the various powers in the constitution are given.

I beg leave to read a passage from this pamphlet: "The relation between the measure and the end, between the nature of the means employed towards the execution of a power and the object, must be the criterion of constitutionality." Here then is the axiom—now for the application of it. The constitution gives to Congress the power to levy taxes, and also the power to borrow money. But the establishment of a bank is neither levying taxes nor borrowing money; nor is the law incorporating the bank a law to levy taxes, or a law to borrow money. But the immediate end or object for which these two powers were given, was, to enable the Government to raise a revenue; and a bank may promote this object. Then, sir, by a dexterous application of the argument which I have stated, the fallacy of which consists in the sudden and unobserved transitions which are made from the power to the object, and from the object back again to the power, they prove that the establishment of a bank is in execution of the powers to lay taxes and to borrow money. I will now, sir, proceed to examine the particular provisions of the constitution which have been relied on, and to place the subject in some different aspects.

In the first place, then, it is contended that the right to incorporate a Bank of the United States is included in the power to lay and collect taxes. And what is the argument by which this position is maintained? Why, sir, it is said that the law, by creating bank paper and making that paper receivable in payment for taxes, increases the circulating medium in which taxes are paid, and of course must facilitate the payment of them. That whatever facilitates the payment of taxes facilitates also the collection of them; and whatever aids or facilitates the collection of taxes, is a means for their collection. And, therefore, the incorporation of a bank is in execution of the power to lay and collect taxes.

No man, sir, ought to complain of the weakness of a Government, whose powers may be reasoned up by logic like this. Amidst the infinite variety of relations and connections, and dependencies and analogies by which all human transactions are allied to each other, he must be a weak politician who cannot, by hooking together a chain of implication like this, justify any and every measure of political policy or economy, as a means of executing some of the powers with which this Government is intrusted. Take this latitude of implication or construction, and you want no other power but the power to lay and collect taxes. It may be tortured into a justification of every measure which ambition itself could desire. No tyrant ever made a law without assigning the public good as the motive of it. No man on this floor, however wicked his designs, would venture to propose a measure (indeed few could be proposed) in favor of which he could not adduce some plausible argument, to show that it would tend to promote the general prosperity of the country. And in showing this he would show its constitutionality; for it is demonstrable that whatever would promote the general prosperity of the country, would, and for that very reason, facilitate, in some greater or less degree, the payment of taxes; and might therefore be justified as a means for the collection of taxes.

But, sir, the constitution, as I have said before, and I must repeat it again, for this is the radical source of all the error on this subject—the Constitution of the United States is not, as such reasoning supposes it to be, a mere general designation of the ends or objects for which the Federal Government was established, and leaving to Congress a discretion as to the means or powers by which those ends shall be brought about. But the constitution is a specification of the powers or means themselves by which certain objects are to be accomplished. The powers of the constitution, carried into execution according to the strict terms and import of them, are the appropriate means, and the only means within the reach of this Government, for the attainment of its ends. It is true, as the constitution declares, and it would be equally true if the constitution did not declare it, that Congress have a right to pass all laws necessary and proper for executing the delegated powers; but this gives no latitude or discretion in the selection of means or powers. A power given to Congress in its legislative capacity, without the right to pass laws to execute it, would be nugatory; would be no power at all. It would be a solecism in language to call it a power. A power to lay and collect taxes, carries with it a right to make laws for that purpose; but they must be laws to lay and collect taxes, and not laws to incorporate banks. If you undertake to justify a law under a particular power, you must show the incidentality and applicability of the law to the power itself, and not merely its relation to any supposed end which is to be accomplished by its exercise. You must show that the plain, direct, ostensible, primary object and tendency of your law is to execute the power, and not that it will tend to facilitate the execution of it. It is not less absurd than it is dangerous, first to assume some great, distinct and independent power, unknown to the constitution, and violating the rights of the States; and, then, to attempt to justify it by a reference to some remote, indirect, collateral tendency, which the exercise of it may have towards facilitating the execution of some known and acknowledged power. This word facilitate has become a very fashionable word in the construction of powers; but, sir, it is a dangerous one; it means more than we are aware of. To do a thing and to facilitate the doing of it, are distinct operations; they are distinct means; they are distinct powers. The constitution has expressly given to Congress the power to do certain things; and it has as explicitly withheld from them the power to do every other thing. The power to lay and collect taxes is one thing; and the power to establish banks, involving in its exercise the regulation of the internal domestic economy of the States, is another and totally distinct thing; and the one is, therefore, not included in the other.

Again, sir, it is contended that the right to incorporate a bank is implied in the power to regulate trade and intercourse between the several States. It is said to be so, inasmuch as it creates a paper currency, which furnishes a convenient and common circulating medium of trade between the several States. Money, sir, has nothing more to do with trade, than that it furnishes a medium or representative of the value of the articles employed in trade. The only office of bank bills is to represent money. Now, if it be a regulation of trade, to create the representative articles or subjects of trade a fortiori, will it be a regulation of trade to create the articles or subjects themselves. By this reasoning then you may justify the right of Congress to establish manufacturing and agricultural companies within the several States; because the direct object and effect of these would be, to increase manufactures and agricultural products, which are the known and common subjects of trade. You might, with more propriety say, that under the power to regulate trade between the States, we have a right to incorporate canal companies; because canals would tend directly to open, facilitate and encourage trade and intercourse between the several States; and, in my humble opinion, sir, canals would furnish a much more salutary, direct and efficacious means, for enabling the great body of the people to pay their taxes, than is furnished by banks. But, sir, these various powers have never been claimed by the Federal Government; and, much as I am known to favor that particular species of internal improvement, I would never vote to incorporate a company for the purpose of opening a canal through any State, without first obtaining the consent of that State whose territorial rights would be affected by it. There can be no question but canal companies, and agricultural companies, and manufacturing companies, and banking companies, may all tend, more or less, to facilitate the operations of trade; but they have nothing to do with the political regulations of trade; and such only come within the scope of the powers of Congress.

But, it is again said, that the right to grant this charter is included in the power to borrow money. The right is attempted to be deduced by a train of reasoning similar to that employed in relation to the provisions which I have already noticed—by forming a string of implications, by which you prove that a power to act in certain cases, and in relation to certain subjects, implies the power to create those cases and subjects to act upon. The Government, it is said, may want and must have money, in any great national crisis. A National Bank with an extensive capital will furnish ample means for loans, will facilitate the exercise of the power to borrow; and, therefore, the right to establish such a bank is implied in the power to borrow. No one, but a logician, sir, would imagine that a power to lend and a power to borrow had any relation to each other, much less could he conjecture that a power to borrow, and a power to create the ability to lend, mean the same thing. A plain unsophisticated man, on reading the constitution, would say, that the power to borrow necessarily, and by force of the term, pre-supposed the existence of the ability and disposition to lend; and that it could not be exercised unless such ability and disposition should actually exist. But the favorite doctrine is, that all powers are given for particular ends, and include all the means applicable to their attainment. Here the end is to borrow money; to borrow honestly if we can, but—to borrow. The ability to lend is a necessary means or ingredient toward perfecting the execution of the power to borrow. But, sir, let me ask, whether the disposition to lend be not as necessary a means towards accomplishing a loan as the ability? It unquestionably is. And, of course, by the doctrine that the end justifies the means, you may coerce the will to lend—and this too equally, in cases where the ability is created by Congress, and where it is derived from any other quarter. A loan obtained by bringing into fair operation all the implications of this power would be borrowing in an off-handed style. Such a loan, if effected by Bonaparte, we should call robbery; but in this mild Republic, it would be nothing more than the fair exercise of an implied constitutional power.

I have pursued this argument thus far, merely for the purpose of showing the absurdities into which this doctrine of implication will lead us. But suppose, sir, that the argument of the gentleman on the other side of the question be correct, to wit: that the power to borrow implies a right to furnish the ability to lend. What, I would ask, is the probable fact, as to the facilities which this bank will afford the Government in borrowing?

It will be conceded that we shall have no occasion for borrowing, except in case of war; and if we have a war, the probability is, that that war will be with Great Britain—I say this, not as a party man, sir, but because the interests of that nation, from her situation, and her rival pursuits, will be much more likely to come in collision with ours, than those of any other power. Now it is a fact, in evidence before the committee, that more than one-half of the stock of this bank belongs to British subjects: and although, as foreigners, they can have no direct agency in the affairs of the bank, yet we well know that through the instrumentality of their friends and agents, of whom there are unfortunately too many in this country, they may completely control its operations. Now I would ask, whether it is probable, that the British subjects would be willing to lend us money to carry on war against their sovereign? Would they not, on the contrary, exert the influence which they are said to possess over the moneyed interest of this country, for the purpose of depressing the credit of the country; for the purpose of crippling the operations of the State banks; and for the purpose of drying up the sources from which the Government might otherwise calculate to derive supplies? But, sir, this has little to do with the question of constitutionality, to which I will again return.

Another ground upon which the constitutionality of this institution has been attempted to be supported, is, that it is necessary to the regular and successful administration of the finances. There is no question, but the bank and its branches afford convenient places for the deposit and safe keeping of the public revenue. It is not to be controverted that they also furnish a safe, convenient, expeditious and cheap means for the transmission of moneys from one part of the United States to another, as they may be wanted by the Government; and if these facilities were not to be attained in any other way, I should say it would afford an argument in favor of a bank. Not a bank infringing and violating the rights of the States; but, a bank upon principles consistent with those rights.

But, sir, is there not, in every State in which there is a branch of the United States' Bank, also one or more State banks, of equal respectability, and of equal security—at least to the extent of any sum for which they are willing to undertake? These State banks may be used as depositaries for the public moneys, and they will be equally safe and convenient. And if you will give to these State banks the advantages of these deposits, as you have hitherto given them to the United States' Bank, they will furnish means for the transmission of moneys from place to place, equally safe, convenient, cheap and expeditious. This object will be attained by connections which will be formed between the banks of the different States. Such connections have already in many instances been formed. But they have not been carried to the extent they otherwise would have been, on account of the United States' Bank and its branches; between which there is so intimate and so necessary a connection.

But, in answer to this, it is said that if the Bank of the United States would be constitutional without the existence of the State banks, it is equally so with. That a power which is once constitutional is equally so at all times, and under all circumstances. That a right which must depend for its existence on the will of the State Legislatures, over whom we have no control, is incomplete, and indeed, as to us, is no right all. This argument is founded on the supposition that the Federal Government is a complete Government, containing in itself all the principles and powers necessary for its own operations, which supposition is wholly false. The Federal Government does not profess to be complete in itself. It is expressly predicated on the existence of the State Governments; and most of the facilities for its exercise are derived from the State governments. It cannot perform even its own peculiar powers and functions, without the aid and co-operation of the State authorities. How, let me ask you, sir, is your Government constituted? Your Senate is appointed directly by the State Legislatures. Your President and House of Representatives, indirectly, by the same authority. Suppose they should neglect or refuse to make these appointments, can you compel them to do it? No, sir. Can you punish them for not doing it? Not in the least. They may appoint or not, as they think proper; and if they should neglect or refuse to do it, your boasted complete Government would die a natural death, by its own imbecility. It is not fair, then, to say that a power is constitutional, because the Government would be incomplete without it. It is not fair to say, that what would be constitutional without the existence of the State Governments and their appendages, is equally so with. This would prove that you have a right to appoint your own President, Senate and House of Representatives. It would go to usurp all the powers of the State Governments; for the Government could not be said to be complete without possessing the powers of both Governments combined. Indeed, this Federal Government cannot be said to be complete as to a single power, without all the auxiliary powers of the State Governments; for there is not a single act which it can perform without their assistance, directly or indirectly. The very bank law now under consideration is an illustration of this—for how are the provisions of this law to be enforced; how are the debts which it authorizes to be contracted to be collected, but through the medium of the State courts? The doctrine of perfect rights, then, if it prove any thing, proves too much. If it proves that, in order to manage your revenues, you may establish banks within the States; it equally proves, that, in order to carry the provisions of your bank laws into execution, you may establish courts and offices within the States for that purpose. I think then, sir, I may fairly conclude, that so long as the State Governments furnish you with all the facilities which you can reasonably require for conducting your revenues by means of their State banks; so long it will be unnecessary—so long it will be improper—and, therefore, so long it will be unconstitutional to invade the jurisdiction of the States, to establish national banks.

But, sir, I will conclude by again cautioning my Republican friends, and my worthy colleague in particular, to beware how they familiarize themselves with this doctrine of constructive power. It is a creed at war with the vital principles of political liberty. The pride and the boast of the American Governments is, that they are the governments of the laws and not of men—that they are the regular and necessary operations and results of principles and powers, established in the moments of cool and deliberate reflection, by the combined wisdom of the nation; and that they are not the effects of the momentary passion, pride, interest, whim, or caprice of a few individuals collected on this floor.

Little did the framers of this constitution, when they were so nicely adjusting and balancing its various provisions—when they were so carefully erecting guards and barriers against the encroachments of power and ambition—little, I say, sir, did they imagine, that there lay concealed under the provisions of this constitution, a secret and sleeping power, which could, in a moment, prostrate all their labors with the dust. Still less, sir, did the people when they adopted this constitution, with even more caution and scruple than that with which it was formed, conjecture that they were signing the death-warrant of all their State rights. But, once adopt the doctrine that you may travel out of the letter of this constitution, and assume powers, merely on the ground that they will tend to facilitate the execution of powers which are here given; and you compass, at a single sweep, all the rights of the States; and form the basis of a consolidated Government.

Let the principle of constructive or implied powers be once established, in the extent to which it must be carried in order to pass this bill, and you will have planted in the bosom of this constitution a viper which, one day or another, will sting the liberties of this country to the heart.

When Mr. Porter had concluded his speech, the question was taken on striking out the first section, and carried—59 to 46.

The committee rose, and reported to the House, who adjourned without taking a question on the report.

Saturday, January 19.

Another member, to wit, from New York, Barent Gardenier, appeared, and took his seat.

Bank of the United States.

Mr. Sawyer called for the order of the day on the unfinished business of yesterday—the bill continuing the charter of the Bank of the United States.

[The first section had been struck out in Committee of the Whole, and the bill reported to the House, and the question now was upon concurrence with that vote in committee. On that question the debate was renewed in the House, and, of necessity, the same ground gone over which had been trod in committee, and still more extensively. Finally the vote was taken, and the concurrence carried by one vote! so close was the contest in both Houses—in the Senate the question decided by the casting vote of the Vice-President—in the House, by one vote. The following were the yeas and nays:]

Yeas.—Lemuel J. Alston, William Anderson, Ezekiel Bacon, David Bard, William T. Barry, Burwell Bassett, William W. Bibb, Adam Boyd, Robert Brown, William Butler, Joseph Calhoun, Langdon Cheves, Matthew Clay, James Cochran, William Crawford, Richard Cutts, John Dawson, Joseph Desha, John W. Eppes, Meshack Franklin, Barzillai Gannet, Gideon Gardner, Thomas Gholson, Peterson Goodwyn, Edwin Gray, James Holland, Richard M. Johnson, Walter Jones, Thomas Kenan, William Kennedy, John Love, Aaron Lyle, Nathaniel Macon, Alexander McKim, William McKinley, Samuel L. Mitchill, John Montgomery, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, Gurdon S. Mumford, Thomas Newton, John Porter, Peter B. Porter, John Rea of Penn., John Rhea of Tennessee, Matthias Richards, Samuel Ringgold, John Roane, Ebenezer Sage, Lemuel Sawyer, Ebenezer Seaver, Adam Seybert, John Smilie, George Smith, Samuel Smith, Henry Southard, George M. Troup, Charles Turner, jr., Archibald Van Horne, Robert Weakley, Robert Whitehill, Robert Witherspoon, Richard Wynn, and Robert Wright.

Nays.—Joseph Allen, Willis Alston, jun., Abijah Bigelow, Daniel Blaisdell, James Breckenridge, John Campbell, John C. Chamberlain, Wm. Chamberlin, Epaphroditus Champion, Martin Chittenden, John Davenport, junior, William Ely, James Emott, William Findlay, Jonathan Fisk, Barent Gardenier, David S. Garland, Charles Goldsborough, Thomas R. Gold, William Hale, Nathaniel A. Haven, Daniel Heister, William Helms, Jonathan H. Hubbard, Jacob Hufty, Ebenezer Huntington, Richard Jackson, jun., Robert Jenkins, Philip B. Key, Herman Knickerbacker, Joseph Lewis, jun., Robert Le Roy Livingston, Vincent Matthews Archibald McBryde, Samuel McKee, Pleasant M. Miller, William Milnor, Jonathan O. Mosely, Thomas Newbold, John Nicholson, Joseph Pearson, Benjamin Pickman, junior, Timothy Pitkin, jr., Elisha R. Potter, Josiah Quincy, John Randolph, Thomas Sammons, John A. Scudder, Samuel Shaw, Daniel Sheffey, Dennis Smelt, John Smith, Richard Stanford, John Stanley, James Stephenson, Lewis B. Sturges, Jacob Swoope, Samuel Taggart, Benjamin Tallmadge, John Thompson, Nicholas Van Dyke, Killian K. Van Rensselaer, Laban Wheaton, and James Wilson.[11]

And then the House adjourned until to-morrow morning eleven o'clock.

Saturday, January 26.

Another member, to wit, from Massachusetts, Edward St. Loe Livermore, appeared, and took his seat.

Tuesday, January 29.

Removal of Federal Judges on address of Congress.

AMENDMENT TO THE CONSTITUTION.

Mr. Wright.—Believing, as I do, that the Constitution of the United States is not perfect, and as provision is made in the body of the instrument for amending its imperfections in the manner therein prescribed, I feel it an imperious duty to propose an amendment to it. Here let me remark, that its adoption was opposed by the patriots of America, at the time of its ratification, because of omissions important to liberty. It had not guarded against an establishment of religion; it had not secured the right of the people to keep and bear arms; it had not guarded against soldiers being quartered in our houses in time of peace, without our consent, it had not guarded against warrants being issued without oath; it had not guarded against a man's being put to answer without previous indictment; it had not secured the criminal in the trial by jury; it had not secured the trial by jury in cases of common law, and these omissions as due guards to the liberty of the citizens stand recorded in these amendments almost coeval with the instrument. The terms Federal and anti-Federal had their origin in the zeal of the respective parties at that time; the one insisting on its adoption with all these imperfections on its head, while the other insisted on these amendments; and it has always appeared to me, that on the adoption of the amendments that those who were called anti-Federals were really the Federals, the constitution being perfected by the adoption of these amendments. The foregoing amendments test its original imperfection, and I trust will lead this House to a temperate examination of the amendment I now propose to submit.

The amendment, sir, is to place the judiciary of the United States on the same foundation that the British judiciary are placed by their laws; by enabling the President, on the joint address of the Senate and House of Representatives of the United States, to remove a judge.

In England the judges held their commissions during the pleasure of the Crown, till the time of Charles the First, when the Parliament imposed upon the King the necessity of granting them during good behavior; till then the Crown, as the fountain of justice, held the uncontrolled direction of the commissions of the judges. At the same time, sir, the High Commission Court and Star Chamber were abolished. In the thirteenth year of William the Third, the judges, by statute, were to hold their commissions during good behavior, and by the same statute they may be removed by the joint address of both Houses of Parliament; and here let me remark, that under that tenure and responsibility, the British judiciary have attained a celebrity in history for their judicial integrity and correctness highly honorable to them, and which this amendment, I fondly hope, in time, may correctly attach to the judiciary of the United States. There are a variety of cases where the exercise of this power may be necessary for the safety of the people, which ought to be the supreme law. This power, I trust, will never be abused by the American Congress. I do not recollect a case under the British Government, where for fifty years it has been exercised, and I trust we shall not ascribe to ourselves an indisposition to the correct discharge of those functions which have been correctly exercised or rather not exercised at all for fifty years by the British Government. If in England, where the Crown is hereditary, the Lords hereditary and for life, and the Commons for seven years, this tenure and responsibility has been found necessary, I trust in this Government, where the President is for four years, the Senate for six, and the House of Representatives for two years, this judicial tenure and responsibility will be thought expedient, and that this amendment will be adopted by Congress, particularly as it is but a preliminary decision—as it must be submitted to the States, and cannot go into operation but by the consent of three-fourths of the United States. I have therefore thought fit to submit this resolution, and hope the reasons assigned will induce you to believe that I think it of such importance to the nation as to entitle it to your attention.

Mr. W. then submitted the following resolutions:

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

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

The House refused to consider the motion—45 to 38.

Wednesday, January 30.

Jared Shattuck's Claim.

The House resolved itself into a committee of the Whole on the report of the Committee of Claims on the petition of Jared Shattuck—59 to 29.

The report is favorable to the claimant—a bill for the relief of this person having in two former sessions passed this House, but not been acceded to in the Senate.

Mr. Montgomery, in a speech of some length, opposed the claim, and moved that the committee rise, with a view to printing the papers relating to the claim, which he conceived was not fully understood.

This motion was debated, and lost—56 to 43.

The report was also debated, and agreed to—57 to 39.

The committee then rose and reported their agreement to the report.

Thursday, January 31.

Another member, to wit, from Massachusetts, Orchard Cook, appeared, and took his seat.

Mississippi Territory.

The House resolved itself into a Committee of the Whole, on the report of the select committee in favor of admitting the Mississippi Territory into the Union on an equal footing with the original States.

A desultory debate of two or three hours took place on the resolution.

Messrs. Poindexter, Johnson, Gholson, McKim, Sheffey, Holland, and Wright, spoke in favor of the resolution, and Messrs. Bacon, Pitkin, Quincy, Bigelow, and Blaisdell, against it. The arguments in favor of its passage were, among others, that the territory could, when possessing a population of 60,000, claim admission as a right; that it now contained probably 45,000, and would, more than probably, before a Representative could be elected under the new constitution, contain full 60,000 souls; that, after admitting Orleans to the rank of a State, with a minor population, at the present session, it would be the height of injustice to refuse the same privilege to Mississippi, which had been so much longer a part of the united territory, and against the admission of which into the Union none of the constitutional objections had weight which had been urged against the admission of Orleans. The opponents of the resolution argued that some respect was due to the feelings, however grounded, of the eastern States, in relation to the creation of new States on the western waters; that the admission of one State during a session was sufficient; if two were admitted into the Union, in the course of three months, the people of the eastern States would be justly alarmed at the diminution of their relative weight in the scale of the Union; that, since it was acknowledged the new State could not be represented before the thirteenth Congress, there could be no occasion for pressing this subject so urgently at this time. Why not, it was asked, wait for the actual census of the territory? The very solicitude which was manifested to get this subject through Congress, it was said, showed there was something wrong, and was a strong argument against the adoption of the resolution.

The resolution was agreed to in Committee of the Whole—ayes 62.

The committee rose, and reported their agreement to the resolution.

The question was then taken to concur with the Committee of the Whole in their agreement to the said resolution, and resolved in the affirmative—yeas 68, nays 47.

Friday, February 1.

Commercial Intercourse.

The House went into Committee of the Whole on the following bill reported by the Committee of Foreign Relations:

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

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

Mr. Emott moved to amend the same by striking out the words in italic, and to insert in their place, "or merchandise." The bill, as amended, would read as follows:

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

Mr. Emott.—Mr. Chairman: As the bill which is now on your table is calculated to relieve our merchants in part from the restrictive system which has again been attempted to be put in operation, I so far approve of it; but as it does not appear to me to go far enough, I rise for the purpose of moving an amendment, which, if adopted, will once more give us a clear deck; and while I am up, the committee will permit me, as concisely as the nature of the subject will admit, to assign the reasons which induce me to propose the amendment.

By the law of the first of May last, the President was authorized, in case either of the great belligerents, before the third of March, revoked her anti-neutral edicts, to proclaim the same, and if the other did not in three months also revoke, a non-intercourse with her was to follow. On the second day of November, the President had proclaimed, as a fact, that France had made the necessary revocation; and it follows, if he was correct as to the fact, that on the second day of this month, the non-intercourse went into operation against Great Britain.

As many formerly, and more latterly, have doubted as to the fact thus proclaimed, it becomes, sir, a duty which we owe to ourselves and to the people, to inquire into its existence; for if it be true that no such repeal, as was contemplated by the law, has taken place; if, indeed, the President has been deceived, or was mistaken, we cannot too soon make it known, and relieve the country from the vexation and embarrassment which must result from the present state of things.

If, sir, additional motives were necessary, we may find them in the bills which have this morning been introduced into the House by the chairman of the Committee of Ways and Means, at the instance of the Secretary of the Treasury, one of which goes to lay large additional duties, and the other to authorize a loan. The reasons assigned by the Secretary for this new and heavy tax on our citizens are, that as the greater part of our duties on imports are collected on goods coming from Great Britain and her colonies, and as those duties will cease with the revival of the non-importation, it becomes necessary, in order to prevent a defalcation in the revenue, to tax the production of other countries much beyond the present rate. On this presumed defalcation, too, in some degree depends the proposition for a loan, or, if a loan be necessary, the amount of it. In this point of view, it becomes highly important to ascertain whether the non-intercourse has gone into operation; for if it has not, I trust we shall not proceed to give form and shape to the recommendation of the Secretary, that we shall not burden the country with new taxes, or subject it to large loans.

In the commencement of this inquiry, Mr. Chairman, we naturally ask ourselves, what edicts are to be revoked, and how are they to be revoked? It is not material to extend this inquiry to Great Britain, as we know of no revocation on her part, and, under all circumstances, we have not, I fear, much reason to believe that there will be such revocation. But it may be well to notice here something which has the appearance of inconsistency, on the part of our Executive, towards that Government.

The non-intercourse law of March, 1809, contains a provision, that, "in case either France or Great Britain shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President shall declare the same by proclamation, and the non-intercourse was then to cease as to the nation revoking. It was under this law, and in consequence of the power so given to the President, that the celebrated, though ill-fated arrangement, was made between the Executive and the British Minister, Mr. Erskine. Now, sir, by referring to this arrangement, you will find, that on April 18, Mr. Erskine proposed to Secretary Smith the revocation of the orders in council of January and November, 1807, as a compliance on the part of Great Britain with the terms of the act of March; and our Secretary, on the same day, declaring that the withdrawing of such orders would be deemed satisfactory by the President, the arrangement was completed on the 19th, and a proclamation accordingly issued on the ground, and assuming the fact, that the British edicts had ceased to violate our neutral commerce, and again opening the intercourse between the two countries after the 10th of June.

This arrangement, and the short and hasty correspondence connected with it, you will recollect, sir, were presented to Congress with the Message, at the opening of the summer session of 1809, and we then passed a law, the object of which was to ratify and to carry into effect the arrangement. Here, then, we have an explicit opinion from both the Executive and the Legislature, that the only British orders which came within the spirit and intent of the law of March, were those of January and November 1807, and that, when those orders were revoked, the edicts of Great Britain ceased to violate the commerce of the United States.

I pray you now, Mr. Chairman, to turn with me to the law of May last; you will there find the precise phraseology of the act of March: "In case either Great Britain or France shall so revoke or modify her edicts, as that they shall cease to violate the neutral commerce of the United States," the President is to make known the fact by proclamation. The authority given to the President is in both cases the same, and it was to have been presumed that it would have been exercised on the same terms. But, sir, it will be found, on referring to the papers, that, under the act of May, the Executive made a further requisition. The revocation of the orders in council of January and November was not to satisfy us, but the blockade of the year preceding was to be also annulled.

In the letter from Secretary Smith to our Minister at London, of the 5th of July, 1810, and which enclosed a copy of the law of May, it is said, "that in explaining the extent of the repeal which is required on the British side, Mr. Pinkney will let it be distinctly understood, that it must necessarily include an annulment of the blockade of 1806;" and our minister accordingly, in his letter to Lord Wellesley, of the 21st of September, tells him it is his duty to state "that an annulment of the blockade of May, 1806, is considered by the President to be as indispensable, in the view of the act, as the revocation of the British orders in council." Nay, so far has the President gone in this particular as to give the French Government a pledge that this will be required on the part of Great Britain. In the letter from Secretary Smith to General Armstrong, of the 5th of July, 1810, the latter is authorized, if it should be found necessary, to "let it be understood that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain."

It is not my intention at this time, to enter into a discussion on the subject of blockades, nor am I to be understood as giving countenance to the system of paper blockades, whether that system proceeds from or is attempted to be enforced by England or by France; but, sir, I have gone into this examination to show that the President has acted differently under two laws which ought to have the same practical construction, because the terms used in them were alike; that under the law of May, 1810, he added a condition to a settlement with Great Britain, which he did not require under the law of March, 1809; and why this difference?

Will it be said, that when the arrangement was made with Mr. Erskine the President had no knowledge of the blockading orders of May, 1806? Not so, sir. By recurring to a report made by Mr. Madison, as Secretary of State, in December, 1808, of belligerent decrees and orders affecting neutral commerce, you will find this very blockade; and certainly what he knew as Secretary in December, he must have known as President in the April following. Shall I be told the President had discovered that the blockade had been "avowed to be comprehended in, and identified with, the orders in council?" I fear this will not be a satisfactory answer. For, in this case, if the orders in council are rescinded, the connection between them and the blockade will then stand as it was supposed by the Executive to stand when the arrangement was entered into.

Persons, Mr. Chairman, more prone to jealousy than myself, and who are disposed to find fault with the late Executive projects, may perhaps point to that passage in the letter from Secretary Smith to Mr. Pinkney, of the 22d of May, 1810, in which it is said, that the President has read, with surprise and regret, the reply of Lord Wellesley to the note requiring explanations with respect to the blockade of France, which "evinces an inflexible determination to persevere in the system of blockade," as affording a reason for this added condition: they may say that it was thrust in when our Administration were satisfied that it would not be acceded to by the British, and for the purpose of preventing an accommodation with, and keeping up the irritation against, that nation. But while, for myself, I disclaim this inference, I must confess that I am at a loss to assign a sufficient motive for the difference in the two cases.

As to France, sir, what were the edicts to be revoked, and how revoked? I shall have occasion, before I sit down, to notice the Berlin and Milan decrees. But were there not other decrees?

We have before us the Rambouillet decree, with a date of the 23d of March, 1810, which declares that "all vessels navigating under the flag of the United States, or possessed in whole or in part by a citizen or subject of that power, which, counting from the 20th of May, 1809, have entered, or shall enter into the ports of our Empire, of our colonies, or of the countries occupied by our arms, shall be seized, and the product of the sales shall be deposited in the surplus fund." Thus embracing almost the whole of continental Europe; for, with the exception of the Russian ports on the Baltic, and two or three places in the European peninsula, every port frequented by the Americans belonged either to the Empire of France, to the colonies of that Empire, or to countries occupied by the forces of the Empire. The seizures under this decree were consequently great and distressing to our merchants.

This decree purports to be an act of reprisal on this country, and for what cause? Not for any act of hostility by us; not for any seizures or confiscations of French vessels or French property under the authority, or within the limits of this Government. No, sir, a pretence of this kind appeared too absurd to be inserted even in a French decree. It is true that General Armstrong, in his letter to Secretary Smith, of the 10th of September, 1810, communicates a verbal explanation which accompanied the last letter of the French Minister: "If you confiscate French property under the law of non-intercourse, they will confiscate your property under their decree of Rambouillet." Ay, sir, and they have given a practical explanation that they would confiscate our property under the decree, although we did not confiscate their property under the non-intercourse law. Look at the decree itself, and you will find the motive, or rather the pretext for this act of reprisal. It is grounded on the passing of the act of the 1st of March, 1809, and it is grounded on that alone.

Thus, because we deemed it advisable to pass a law which we supposed was a mere municipal regulation, inasmuch as it related to our own citizens, or our own territories; a law, which, according to its letter, applied equally to both belligerents, and which was not to commence its operation until the 20th of May, contained in itself a notice sufficient to prevent any injury to French subjects; for this cause, and for this alone, the Emperor adopts, as an act of reprisal, a decree which subjects to seizure and confiscation, not only American property which should reach the continent after notice of the decree, or even after its date, but property which arrived there at any time for the preceding twelve months. I will not stop to inquire what would and what ought to have been the feelings of the Administration and of the country, if such an outrage had been committed by England for such a cause. But, sir, if the French Government is allowed to have in the act of March an excuse for reprisal, we had better discontinue making laws altogether; for it is difficult to find in our statute book a law less hostile to France, or more within the right of an independent Government to enact.

To see the true character of this decree, we must approach it a little nearer; and with the letters of the Duke of Cadore in my hand—those letters, sir, which have occasioned our present embarrassments—I am strangely deceived if this proceeding of the French Government does not appear to partake of the nature of an offence which, as respects individuals, is called swindling. It is a taking of property under false pretences.

Allow me now, Mr. Chairman, to present you with another view of this decree. The Duke of Cadore, in his letter of the 5th of August, 1810, says: "Now Congress retrace their steps; they revoke the act of the 1st of March; the ports of America are opened to French commerce, and France is no longer interdicted to the Americans." And in his letter of the 7th of September, he uses these expressions: "His Majesty has always wished to favor the commerce of the United States. It was not without reluctance that he used reprisals towards the Americans, while he saw that Congress had ordered the confiscation of all French vessels which might arrive in the United States."

"As soon as His Majesty was informed of this hostile act, he felt that the honor of France, involved in this point, could not be cleansed but by a declaration of war." Now "the American vessels which shall arrive in France, will not be subject to confiscation, because the act of Congress, which had served as a motive to our reprisals, is repealed." From this exposition of the views of the French Government, handed to us by the Minister of Exterior Relations, we perceive that he places the Rambouillet decree entirely to the account of the non-intercourse law of March; and from the course of reasoning used by him, it seems to be admitted that the decree, and the seizures under it, could not be justified, but while the obnoxious law was in force.

But we here again meet with another of the mistakes of this most just Government, which is so jealous of its honor and so friendly to our commerce. The fact happens to be that the law never was repealed. By its own limitation it expired with the then session of Congress, and, of course, went out of existence on the 28th of June, 1809. Thus this poor law, which is now brought up in judgment against us, had quietly descended to the tomb of the Capulets almost a year before the Emperor and King thought it consistent with his interest, or for the honor of his empire, to commence his measures of retaliation. The limitation clause could not have escaped the attention of His Majesty when he read the law; and, I trust, we yet have pride enough to believe that he knows there is an American Congress, and notices the periods of our meeting and departure, if he is careless about our proceedings. When, therefore, Napoleon issued the plundering decree of Rambouillet, he knew that the law on which he placed his justification had long since expired. But he knew a further fact, that the law never did affect French vessels. The British navy kept them at home, and we excluded English vessels only. Such was the practical and the only practical operation of our law.

I am aware that the apologists of the Emperor will point to the act of the 1st of June, 1809, as reviving or continuing certain sections of the law of March. Let me not be misunderstood, Mr. Chairman. I do not mean to insinuate that the Emperor has apologists in this House, in this ark of independence and liberty of a great people; but, in whatever place this suggestion shall be offered, it may be answered that the French Government have not noticed the last law in their decree, or in any of their official papers. And it may be further remarked that the law of June, like that of March, was limited to the end of the next session of Congress, and, of course, ceased its operation on the 1st of May, 1810. As the decree issued on the 14th of May, and the seizures under it were after that time, it would seem, to a man of common understanding, who believes the transactions between nations are, or ought to be, regulated by the rules of honest, plain dealing, that the Emperor, when he had knowledge of the fact, would have loosened his hold on our property. And yet we find that, when we approach him on this subject, he laughs us to scorn.

The object which I had in view, in this examination of the Rambouillet decree, was, to mark its true character, to show that this decree emphatically outraged our neutral rights, and that, if it was submitted to by this country, our code of national rights will be found hereafter in the same books with those of the kingdoms which belong to the Confederation of the Rhine. Our merchants are induced to adventure to France by a prospect of large profits, and by promises of great security if their vessels have not been "denationalized." They take there many a valuable cargo, until the amount of property becomes an object of imperial attention, and then it is seized upon by an irresistible and unrelenting hand, without notice, and upon pretexts void of any foundation. Can a decree, or order, or edict, be pointed out in the long history of our wrongs and our sufferings, which is more strongly marked with injustice, or which more strongly "violates our neutral commerce?"

I will not detain the committee by entering into a particular examination of the French decrees, which, in the commencement of the last year, authorized the seizure of such a number of American vessels at St. Sebastians, at Naples, and in the North of Europe. It would lead me too far into the views and conduct of the French Government towards this country, for the purposes of this discussion. But, sir, in this volume of documents, I see, with emotions which I am sure are in unison with those of the American people, the famous note, signed "Champagny, Duke de Cadore," of the 4th of February last, written to justify those seizures, and, as he says, "that the President may the better know the friendly intentions of France towards the United States, and her favorable dispositions to American commerce;" in which we are told that we are "without just political views, without honor, and without energy." And are we so sunk in the estimation of the mighty conqueror, that he thinks it necessary and proper to use this as his official language towards us? Surely, sir, he mistakes the character and the spirit of this people if he believes they are to be broken down, or brought into his views, by insults or threats. As our Government had, a few months before, discharged and disgraced a British Minister for a supposed insult by an insinuation, it was to have been expected that, on this occasion, equal spirit would be shown. But to such as formed corresponding expectations, what will be their feelings when they find that the only Executive notice of the note is found in the letter of Mr. Smith to General Armstrong, of the 5th of June last, in which the Secretary says, that, "as the John Adams is daily expected, and as your farther communications by her will better enable me to adapt to the actual state of our affairs with the French Government, the observations proper to be made in relation to the seizure of our property, and to the letter of the Duke of Cadore, of the 14th of February; it is, by the President, deemed expedient not to make, at this time, any such animadversions."

Let us now see, Mr. Chairman, whether these decrees have been "so revoked or modified as that they ceased to violate the neutral commerce of the United States."

These decrees have two distinct operations, the seizure of our property, and the subsequent sale of that property; and, without attempting to prove a proposition which appears self-evident, I shall take it for granted that, if it was an infringement of our rights to seize the property, it is equally an infringement of our rights to proceed to the confiscation and sale of such property. Nay, sir, if we allow to the French Government the plea of retaliation, the infringement of our rights will commence with the confiscation and sale of our vessels after the cause of retaliation has been removed by us, and known so to be by the Emperor. A revocation or modification of these decrees, so that they should cease to violate our fair commerce, therefore, would look as well to an indemnity for the past as a security for the future; it necessarily includes a restoration of the property already taken, as well as an engagement against future captures. This appears to have been, at one time, the opinion of our Administration; for you will find, by recurring to the letter from Secretary Smith to General Armstrong, of the 5th of June, 1810, which enclosed a copy of the law of May, the determination of our Executive is thus made known: "If, however, the arrangement contemplated by the law should be acceptable to the French Government, you will understand it to be the purpose of the President not to proceed in giving it effect, in case the late seizure of the property of the citizens of the United States has been followed by an absolute confiscation, and restoration be finally refused." And in the letter from Mr. Smith to General Armstrong, of the 5th of July, this determination is expressed with added strength: "As has been heretofore stated to you, a satisfactory provision for restoring the property lately surprised and seized by the order, or at the instance of the French Government, must be combined with a repeal of the French edicts, with a view to a non-intercourse with Great Britain; such a provision being an indispensable evidence of the just purpose of France towards the United States."

Without asking for the evidence which the President had as to the repeal or modification of these decrees, I now put it to the committee whether every member of it is not perfectly convinced that if any modification, or suspension, or repeal, has taken place, it goes no farther than to restrain future seizures, leaving the property already seized to take the course of confiscation and sale? Do we not know, that, in the months of October and November, our vessels and merchandise have been brought under the hammer in pursuance of those decrees; and have we not lately seen, in our public journals, a list of some eighteen or twenty ships advertised by the French Government for sale at Bayonne, on the 5th of December? Nay, sir, the Executive was informed, before he issued his proclamation, by the letter from the Duke of Cadore to General Armstrong, of the 12th of September, 1810, that, "as to the merchandise confiscated, it having been confiscated as a measure of reprisal, the principles of reprisal must be the law in that affair." Words cannot be found which would more satisfactorily "evince an inflexible determination" to retain the property. As the principles of reprisal are to be the law, it follows that a restoration of the property depends on the discretion of the Emperor, and is not to be claimed by us as a matter of right, but of favor. And what have we to propose, according to the principles of reprisal, to obtain the restoration? Is it, that we have suffered the non-intercourse law to expire? Why, sir, this had taken place long before the letter of the Duke of Cadore. Is it a restoration of French property seized under the law of non-intercourse? This cannot take place; because, in truth, there was no such seizure.

We will now examine whether there has been such a revocation of the Berlin and Milan decrees as warranted the proclamation. And here let me remark that, when the President acted under this law, he was not exercising the treaty-making power. He was the mere agent of the Legislature, and as such agent, he was confined and limited by his letter of attorney, the law. He had not, therefore, as has been asserted, a discretion, nor had he any thing to do with considerations of comity or courtesy. He was to ascertain when there was an actual and practical revocation, and then make known the fact; the consequences were left with the legislature. Indeed, sir, this power to give publicity to a fact might have been committed to one of the Secretaries, or to a clerk in the offices, and if it had, we should have smiled at the suggestion that its exercise depended on considerations of courtesy.

Mr. Chairman, when the proclamation first appeared, my impression was, and such, too, I understood to be the general impression, that the President had some document unknown to the American people. The letter of the Duke of Cadore, of the 5th of August, was already before the public, but it was not credited that on this letter the proclamation had been issued. Since we have received the Message the subject is at rest. It is now known and acknowledged that the President had not, and to this moment has not, any other evidence of a revocation. Now, sir, in this letter, I see neither the form nor the substance of a revocation.

What is the understanding of the French courts and officers, on this subject. I have already presented you with that part of the letter of the Duke of Cadore, of the 5th of August, in which he says, that since Congress have retraced their steps, by revoking the act of the first of March, "France is no longer interdicted to the Americans." Now, if this letter is in the form of a decree, it revokes or modifies the Rambouillet decree equally with those of Berlin and Milan, inasmuch, as long as the former continued in force, France was interdicted to the Americans. And yet we find, in a letter of the Duke of Cadore, of the 7th day of September, our Minister inquiring, "Has the decree of His Majesty of the 22d day of March last been recalled?" And General Armstrong, in his letter to Mr. Smith of the 10th of September, remarks, that this inquiry "may appear to have been useless, after the declaration, that American ships which will hereafter arrive in the ports of France shall not be subject to confiscation; but understanding from the Council of Prizes, that until some act be taken which had the effect of recalling, by name, the decree of the 23d of March, they must consider it both as existing and operative, and of course binding upon them," and he had presented the subject again.

Here, then, we have the opinion of the French court, most known and most important to us, the Court of Prizes, that the letter of the Duke of Cadore is not in the form of a decree, and has not the force and effect of a decree. In addition to this, we have the act of seizure of the brig New Orleans Packet, by the director of the customs at Bordeaux, in December last, under the Berlin and Milan decrees. As the letter of the Duke of Cadore had been published in France prior to this period, no one will believe that if it was in form of an edict of the Empire, the seizure would have been made.

But if the contents of this letter had been embodied in a formal act, would it have amounted to such a revocation or modification of the Berlin and Milan decrees, as that they ceased to violate our neutral commerce?

I remark first, that the revocation, if it be one, was a future and not a present revocation. "The decrees of Berlin and Milan are revoked, and, after the first of November, they will cease to have effect." Now, sir, although there is an affected obscurity in this sentence, the intent is most obvious. As long as a law continues in operation, so long it must be unrepealed, and as these decrees were to have effect until the 1st of November, it follows, that on no construction can they be considered as revoked until that period. Indeed, on this point the Duke of Cadore is quite explicit in his letter to General Armstrong of the 7th of September, in which he tells him, that American vessels arriving in France before the first of November, although not liable to confiscation, "will be subjected to all the effects of the Berlin and Milan decrees."

But, again: the revocation, if any, was not only future, but it was also conditional; "it being understood, that in consequence of this declaration, the English shall revoke their Orders in Council and renounce the new principles of blockade which they have wished to establish, or that the United States, conformably to the act you have just communicated, shall cause their rights to be respected by the English." A condition—a qualification—a restriction. Is it not obvious, from the very terms of the letter, that it contains a condition that the repeal is a qualified one? The words "it being understood," are not only expressive of this, but they are singularly appropriate. If, however, we were inclined to doubt, we must be satisfied by the letter of the Duke of Cadore to General Armstrong, of September 7th, in which it is said, that the Emperor "repeals his decrees of Berlin and Milan, under the conditions pointed out in my letter to you of the 5th of August."

Our Ministers, General Armstrong and Mr. Pinkney, appear to have puzzled themselves much about this condition, to discover whether it was a condition precedent, or a condition subsequent. To me, sir, the idea of a condition subsequent to a repeal, is rather novel; but it may nevertheless be just. In common understanding, it is believed, that when a law is repealed it is extinct, and if it be so, then its appendage, the condition, would seem to be at an end of course. But in the view which I am about to take of this subject, it is not necessary to settle this point, as it must be conceded, that whether we call the condition a condition precedent, or a condition subsequent, the same consequence will follow: if the condition is not complied with, the decrees must be in force still. Now, sir, it appears to me that the conditions, attached to this pretended or proposed repeal, are of a nature which have not, and will not be complied with.

First, sir, as to the conditions on the part of England: "The English shall revoke their Orders in Council, and renounce the new principles of blockade which they have wished to establish." With respect to the Orders in Council, I have nothing to say either as to their justice or their policy. Heaven knows they have been to us, from the moment of their inception, sore evils; the causes of great vexation, embarrassment, and losses; and I hope the period is not far distant when we shall be no longer disturbed by them. But, sir, I wish to call your particular attention to the other branch of the condition, that relating to blockades. We have been so long in the practice, and justly in the practice, of complaining of paper blockades, that at the first blush we are induced to believe the condition relates to them, and to them alone. Are these the blockades which are intended? Let the Emperor and King answer for himself. In the official note from Count Champagny to General Armstrong, of the 22d of August, 1809, we have this declaration: "A place is not truly blockaded until it is invested by land and by sea; it is blockaded to prevent it from receiving the succors which might retard its surrender. It is only then that the right of preventing neutral vessels from entering it exists." But we have it under the hand and seal of the Emperor himself, what he means by the "new principles of blockade." In the Berlin decree there is an enumeration of real or pretended interpolations, on the part of Great Britain, in the law of nations; among which we discover these: "that England does not admit the right of nations as universally acknowledged by all civilized people; that she extends to ports not fortified, to harbors and mouths of rivers, the right of blockade, which, according to reason and the usage of civilized nations, is applicable only to strong or fortified ports." And it is declared that "the decree shall be considered as the fundamental law of the Empire, until England has acknowledged that the rights of war are the same on land as at sea—and until the right of blockade be restrained to fortified places actually invested by competent forces."

There can be no misunderstanding on this subject. The Emperor offers to give up his Berlin and Milan decrees, if the British will renounce their new system of blockade; and in these very decrees he explains what he means by this new system; that, besides paper blockades, it is the attempt to blockade the mouths of rivers and harbors, and ports not fortified. Now, sir, I will admit, if we could prevail on Great Britain and France thus to limit the right of blockade, it would add much to our security at home; for as we have no fortified places, although we may have places with fortifications, it would follow that we should never be subject to a blockade. But is it true that according to the usages of nations this is a novel system, or one now, for the first time, put in use by the British? Or is it believed, that a nation like England, whose effective force for offence and defence is a maritime force, can or ought to subscribe to a system of blockade which confines its exercise and right to "fortified places actually invested?" What would be the effect of such a system in the present war? France has surely not to apprehend an invasion from England; and if any of the commercial places on her extensive coasts are fortified, the fortifications may be dismantled or destroyed with great safety. As soon as this is done they become "harbors and ports not fortified," and have no longer to apprehend any inconvenience from the pressure of a naval force. Is it not obvious that England will not comply with her part of the condition, and that the Emperor never expected that she would?

As to the conditions on the part of this country—"The United States, conformably to the act you have just communicated, shall cause their rights to be respected." What rights, Mr. Chairman? The right of not being vexed or endangered by paper blockades? Yes, sir, and more; the right of not being interrupted in a commercial intercourse with cities situated on rivers, as Antwerp for instance; or to carry on a free trade with all the continental ports and harbors not fortified, although the whole British navy may be cruising at the mouth of the river, or in sight of the port. But we have a further declaration of neutral rights which the French Emperor says he will allow when France has a marine proportioned to the extent of her coasts and her population, and which, so long as the British shall continue to be masters of the sea, he insists we shall claim and exercise. Thus, in the note from Count Champagny to General Armstrong, of the 22d of August, 1809, "France admits the principle that the flag covers the merchandise. A merchant vessel, sailing with all the necessary papers from its Government, is a floating colony. To do violence to such a vessel by visits, by searches, and by other acts of an arbitrary authority, is to violate the territory of a colony. This is to infringe on the independence of its Government." In other words, the flag is to protect the property, and search is not to be permitted. I pray you, sir, to bear in mind, that since the formation of this Government, and under every Administration, the right of blockading, by an actual present and efficient force, ports and places not fortified; the right of search, and the principle, that enemy property is not protected by the character of the vessel, has been recognized or conceded.

But how are we to cause these rights to be respected? By putting in force the non-importation law? Suppose the British should not believe themselves excessively injured by this measure; that, in fact, it operated to their advantage, and we are suffered to bring on premature decay and old age, by this political quackery. Would this satisfy the Emperor? No, sir. He would soon tell us that we had not caused our rights to be respected. It is idle to believe that he will deem the non-importation a compliance with his condition; nor, to me, does his language convey this idea. We are to oppose, or declare ourselves against the British, and in the spirit of our law and of his declaration, we are to cause our rights to be respected, not by self-destroying measures, but by actual force and open hostility, if the English nation will not, without it, subscribe to the terms which have been presented to it. Recollect the history of our embargo and former non-intercourse, the propositions made under them by our Government to the French Government, and how these propositions were received, and you will be satisfied of the nature and extent of the present condition.

And now, let me ask, whether we are prepared for these conditions? Whether we believe in all the rights which the French Emperor condescends to claim for us from the British, although he will not admit them himself? And whether we are prepared to go to war for them? To me the conditions, both on the part of this country and Great Britain, appear inadmissible. At all events, I think that the President, before he acted on a proposition so loose and general, which admits of so much doubt, and can, by fair construction, be carried to such extravagant lengths, ought to have asked and received explanations and particulars.

But it may be said that the letter of the Duke of Cadore, if not itself a decree, is evidence that there is a rescinding decree. To my mind, Mr. Chairman, it has internal marks to the contrary; but, without troubling the committee with any further comments on the letter, I observe, that viewing it as a mere matter of evidence, it may be fortified or explained by other evidence. I have already read to you parts of the letters from Secretary Smith to General Armstrong, of the 5th of June and the 5th of July, which declare the determination of the President not to carry the non-intercourse law into effect against England, unless France not only revoked her decrees, but restored our sequestered property. We are to presume that our Minister made known this determination to the French Court, as it was his duty so to do. Now, with this declaration before him, is it to be credited that the Emperor would revoke his decrees, when he was given to understand that the revocation would lead to no result on our part, inasmuch as he did not release our property? Is it not obvious, from this circumstance alone, that the letter is a mere proposition in answer to the one made by our Government, expressive of the views, and stating the terms on which the Emperor would revoke?

Again, sir, we have the letter of Mr. Russell to Secretary Smith, of the 11th of December, 1810, informing our Government that the brig New Orleans Packet had been seized at Bordeaux a few days before, under the Berlin and Milan decrees, by the director of the customs. And we have had communicated to us, by the President, the note from Mr. Russell to the Duke of Cadore, of the 10th of December, stating this seizure to have been made under the decrees, and giving an additional fact, that the case of this vessel was the first which had occurred after the first of November, to which the decrees could be applied. As this seizure was made under the decrees, it shows the impression in France to be, that they still are existing and in force; and the evidence is the stronger, as coming from the custom-house of one of the principal trading towns, where surely the revocation must have been officially known, if it had taken place. I am aware it is said that Mr. Russell must have been misinformed as to the cause of the seizure, or that the custom-house officer mistook his duty. But as to both of these suggestions, I will only remind you of the silence of the French Government. The remonstrance of Mr. Russell was handed to the French Minister on the 10th of December, and the vessel which bore the despatches, brought Paris accounts to the 27th of December, and did not leave France until the 1st of January. If Mr. Russell had any explanation or answer from the French Government it would have been communicated to us; but he had none. The silence of the French Minister is equal to an express affirmance of the act of the custom-house officer, and is an admission that the decrees have not been revoked.

Saturday, Feb. 9.

Commercial Intercourse.

On motion of Mr. Eppes all the orders of the day were laid on the table, and the House resolved itself into a Committee of the Whole on the bill supplementary to the act concerning commercial intercourse, &c.

Mr. Emott's motion being under consideration, to amend the bill so as to repeal the law of May last, &c., Mr. Rhea made a motion superseding that, viz: to strike out the whole of the bill.

Mr. Eppes said, that when, on a former day, this bill, designed only for the relief of our own citizens, was under discussion, subjects not at all connected with its merits were brought into view. A gentleman from New York (Mr. Emott) presented to the House on that occasion his view of our foreign relations, and exercised all his ingenuity to show, as it is but too often the practice here, that the Government of the United States is exclusively wrong, and the Government of Great Britain exclusively right. It seems that in this enlightened age new duties are assigned to a Representative. Under the pressure of every injury which foreign influence can inflict, a Representative is considered as discharging his duty, if, with a fine-spun web, he can present, under a suspicious aspect, either the motives or the acts of the Executive branch of his Government. No nation, ancient or modern, unless in the last stage of corruption, can be produced where, as in the United States, periods of difficulty have been seized by the Representatives, and the weight of their talents exclusively employed for increasing the public embarrassments. The speech of the gentleman from New York, however well he may have covered it under mildness of manner and a fine-spun argument, is designed to convey to the people an idea, that the Executive has manifested partiality towards France in the late arrangement. The gentleman tells us, that while the Minister of one foreign nation was denounced here for an implied insult, the letter of the Duc de Cadore to Mr. Armstrong is passed over almost in silence; that the Secretary of State, in a letter to General Armstrong, tells him that the President thinks it unnecessary to make any remarks on it. The gentleman ought to have gone further, and stated the whole fact: that the letter of General Armstrong in answer to the Duc de Cadore was approved by the President; that, by the approval, he adopts as his own the language and sentiments of that letter. The letter of General Armstrong, by the approval of the President, has become the act of his Government. For the sentiments contained in that letter the American Government is responsible, and not General Armstrong. The firm, manly, and eloquent reply of General Armstrong to the Duc de Cadore stands precisely on the same footing as if it had been originally written under the directions of the Government. General Armstrong did not wait for instructions. He repelled, in a style comporting with the dignity of his station, the charges of the Duc de Cadore. The President, through the Secretary of State, approves his letter, adopts it as his own, and says he has nothing to add. Well, indeed, sir, might he say so, because the Minister had already said, in a style as pleasing to his country as to his Government, all that the occasion demanded. But, sir, the gentleman from New York cannot agree with his colleague in considering the President of the United States correct in issuing his proclamation. Why, sir, does the gentleman disapprove of the President's proclamation? Because, says the gentleman, the letter of the Duc de Cadore, of August, was not a repeal of the Berlin and Milan decrees. It is a mere promise that on a certain day they shall be withdrawn. When, sir, the President received the declaration of Mr. Erskine, the British Minister, that, on a particular day, the Orders in Council would be withdrawn, and issued a proclamation founded solely on that declaration, his conduct was warmly approved by men of all parties. The gentleman from New York joined in the burst of applause heaped on that Executive act. Was the letter of Mr. Erskine a repeal of the British orders? Unfortunately, we know practically it was not. Was it such a repeal as the gentleman contends ought to have taken place of the Berlin and Milan decrees, viz: under the sign manual of the Emperor? No, sir, it was just such a letter as that of the Duc de Cadore. In both cases the word of the Minister was taken as a pledge, and, on examining the two letters, so far as they may be considered a pledge, the words are nearly the same. I approved of the arrangement with Mr. Erskine; so did the gentleman from New York. I cannot see any difference in the ground taken by the Executive, except that one arrangement was with Great Britain, and the other with France. The one affected the interests of Great Britain; the other affects the interests of France. The gentleman from New York, more nice in distinctions than myself, may, perhaps, satisfy himself and the people that these two cases are marked by lines so strong as to render the conduct of the Executive in the one case an object of applause and approbation for himself and his friends, and in the other of suspicion and censure. It is not, however, my intention to pursue the gentleman through his argument. There is one part of it which I consider it a duty to pass in review, inasmuch as it is calculated to give to the public an erroneous view of the grounds taken by the Executive in the recent negotiation with Great Britain. The gentleman says, the President has not only required of Great Britain to withdraw her orders, but her blockades also. This, he says, she cannot and never will yield. This declaration is made, too, in the presence of the agent of Great Britain, who must have heard with delight the American Executive held up to suspicion, and an American Representative declare, on the floor of Congress, that demands were made on Great Britain, not sanctioned by the law of the last session. In order, sir, to support this declaration, the gentleman gives a view of the demands of the Executive on Great Britain totally incorrect and contradicted by every part of the correspondence before us. The gentleman tells you, that we have demanded of Great Britain not a withdrawal of the Orders in Council only, as contemplated by the law of last session, but of her "novel blockades." To establish the demands of the Executive, he turns, not to the correspondence, but to the Berlin or Milan decrees, and takes for our demand on Great Britain the definition of blockade given by the French Emperor. The gentleman is entirely mistaken as to the demand made of Great Britain by the Executive. The revocation of but one blockade, viz: that of May, 1806, is included in the demand of the Executive. The features of this blockade render it different from all other blockades. It is, in fact, from its character, more like the Order in Council, a permanent regulation in commerce, than a blockade. I will, however, first show from the correspondence, that the President did not, under the act of the last session, require the revocation by Great Britain of any blockade except that of May, 1806; and then, that from the peculiar features of that blockade, it must have been included in the demand made under the act of the last session. In the Message of the President, at the commencement of the session, pages 4th and 5th, we find the demand stated in the following terms:

"Under the modification of the original orders of November, 1807, into the orders of April, 1809, there is, indeed, scarcely a nominal distinction between the orders and the blockades. One of these illegitimate blockades, bearing date in May, 1806, having been expressly avowed to be still unrescinded, and to be, in effect, comprehended in the Orders in Council, was too distinctly brought within the purview of the act of Congress, not to be comprehended in the explanation of the requisites to a compliance with it. The British Government was accordingly apprised by our Minister near it, that such was the light in which the subject was to be regarded."

This is the language of the President. In pages 38 and 39 of the correspondence, we find the declaration of Mr. Smith, our Secretary of State, to General Armstrong, in the following words:

"If the non-intercourse law, in any of its modifications, was objectionable to the Emperor of the French, that law no longer exists.

"If he be ready, as has been declared in the letter of the Duke of Cadore, of February 14, to do justice to the United States, in the case of a pledge on their part not to submit to the British edicts, the opportunity for making good the declaration is now afforded. Instead of submission, the President is ready, by renewing the non-intercourse against Great Britain, to oppose to her Orders in Council a measure which is of a character that ought to satisfy any reasonable expectation. If it should be necessary for you to meet the question, whether the non-intercourse will be renewed against Great Britain, in case she should not comprehend, in the repeal of her edicts, her blockades which are not consistent with the law of nations, you may, should it be found necessary, let it be understood, that a repeal of the illegal blockades of a date prior to the Berlin decree, namely, that of May, 1806, will be included in the condition required of Great Britain; that particular blockade having been avowed to be comprehended in, and, of course, identified with the Orders in Council. With respect to blockades, of a subsequent date or not, against France, you will press the reasonableness of leaving them, together with future blockades not warranted by public law, to be proceeded against by the United States in the manner they may choose to adopt."

In pages 45 and 46, we have the declaration of General Armstrong and the Duke de Cadore. Mr. E. then read the following:

From General Armstrong to Mr. Pinkney.

Paris, January 25, 1810.

"Sir: A letter from Mr. Secretary Smith, of the first of December last, made it my duty to inquire of His Excellency the Duke of Cadore, what were the conditions on which his Majesty the Emperor would annul his decree, commonly called the Berlin decree; and whether, if Great Britain revoked her blockades, of a date anterior to that decree, his Majesty would consent to revoke the said decree? To these questions I have this day received the following answer, which I hasten to convey to you by a special messenger:

Answer.—"The only conditions required for the revocation, by his Majesty the Emperor, of the decree of Berlin, will be a previous revocation, by the British Government, of her blockades of France, or a part of France, (such as that from the Elbe to Brest, &c.,) of a date anterior to that of the aforesaid decree."

In page 47, we have the statement of Lord Wellesley to Mr. Pinkney:

"I have the honor to acknowledge the receipt of your note of the fifteenth ultimo, wherein you request to be informed whether any, and if any, what blockades of France, instituted by Great Britain during the present war, before the first day of January, 1807, are understood by his Majesty's government to be in force? I have now the honor to acquaint you, that the coast, rivers, and ports, from the river Elbe to Brest, both inclusive, were notified to be under the restrictions of blockade, with certain modifications, on the 16th of May, 1806; and that these restrictions were afterwards comprehended in the Order of Council of the 7th of January, 1807, which order is still in force."

In page 71 of the correspondence, Lord Wellesley declares, in a letter to Mr. Pinkney:

"The blockade, notified by Great Britain in May, 1806, has never been formally withdrawn. It cannot, therefore, be accurately stated, that the restrictions which it established rest altogether on the Order of Council of the 7th of January, 1807; they are comprehended under the more extensive restrictions of that order. No other blockade of the ports of France was instituted by Great Britain, between the 16th of May, 1806, and the 7th of January, 1807, excepting the blockade of Venice, instituted on the 27th of July, 1806, which is still in force."

From this, sir, it appears that if we are to credit the President, the Secretary of State, General Armstrong, the Duc de Cadore, and the British Minister, Lord Wellesley, the demand was confined to the blockade of 1806. Was this blockade such a violation of the neutral rights of the United States as to come decidedly within the act of the last session? Let us examine its features. This blockade is a compound one, presenting three distinct characters:

1. It obstructs a trade from one port to another of the same enemy—France for example. This trade has been denied latterly though not formerly, by Great Britain, to be free to neutrals. The United States assert the neutral right to it.

2. It obstructs a trade from the port of one enemy to the port of another—from a French to a Dutch port, for example. This is a principle not before asserted by Great Britain. The present Cabinet of Great Britain contended against its conformity to the law of nations, in opposition to their predecessors, who attempted to justify the orders of January, 1807, on that principle.

3. It obstructs the direct trade of neutrals from their own country to any part of the coast from the Elbe to Brest—a coast not less than a thousand miles. For this part of the blockade there can be no defence which is not applicable to the Orders in Council. This blockade has been continued for four or five years. No force, either adequate or inadequate, has been stationed for carrying it into effect. No new notification has been given. It is, in fact, like the Orders in Council, a permanent regulation of commerce, and has nothing of the character of a blockade, except the mere name. This blockade consists in great part of the same prohibition with the orders of January, 1807, in which it is said to be comprehended; that is, against a trade along the belligerent coast. If the orders be unlawful, therefore, the blockade must be so; and if the orders be repealed as a violation of neutral trade, in compliance with the act of Congress, the obligation to repeal the blockade, as a like violation, cannot be contested. This blockade of May, 1806, is in violation of the principles laid down by all authors on the subject of blockade. It is in violation of the principles laid down in all the treaties which attempted to define a blockade. It is in violation of the principles contended for by every Administration under the American Government, from the period of Washington to the present time. The correspondence under General Washington's Administration, between the Secretary of State and Mr. Hammond, may be referred to for the principles asserted under that Administration. In the correspondence before us we have the principles as laid down by General Marshall and Mr. King. To these I will refer.

Mr. E. then read the following extracts of letters from Mr. King and Mr. Marshall:

From Mr. King.

"Seven or eight of our vessels, laden with valuable cargoes, have been lately captured, and are still detained for adjudication; these vessels were met in their voyages to and from the Dutch ports, declared to be blockaded. Several notes have passed between Lord Grenville and me upon this subject, with the view, on my part, of establishing a more limited and reasonable interpretation of the law of blockade, than is attempted to be enforced by the English Government. Nearly one hundred Danish, Russian, and other neutral ships have, within a few months, been, in like manner, intercepted, going to and returning from the United Provinces. Many of them, as well as some of ours, arrived in the Texel in the course of the last winter; the severity of which obliged the English fleet to return to their ports, leaving a few frigates only to make short cruises off the Texel, as the season would allow.

"My object has been to prove that, in this situation of the investing fleet, there can be no effective blockade, which, in my opinion, cannot be said to exist without a competent force, stationed and present at or near the entrance of the blockaded port."

Extract of a letter from Mr. King to Lord Grenville, dated

London, May 23, 1799.

"It seems scarcely necessary to observe, that the presence of a competent force is essential to constitute a blockade; and although it is usual for the belligerent to give notice to neutral nations when he institutes a blockade, it is not customary to give any notice of its discontinuance; and that consequently the presence of the blockading force is the natural criterion by which the neutral is enabled to ascertain the existence of the blockade, in like manner as the actual investment of a besieged place is the only evidence by which we decide whether the siege is continued or raised. A siege may be commenced, raised, recommenced and raised again, but its existence at any precise time must always depend upon the fact of the presence of an investing army. This interpretation of the law of blockade is of peculiar importance to nations situated at a great distance from each other, and between whom a considerable length of time is necessary to send and receive information."